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OPEAN LE GAL HISTORY 


a ee eee ee ee ee ee ee Py 


A GENERAL VIEW OF 
EUROPEAN LEGAL HISTORY 


AND OTHER PAPERS 


BY 
MUNROE SMITH 


DOCTOR OF LAWS, AMHERST, COLUMBIA, GOTTINGEN AND LOUVAIN 
LATE BRYCE PROFESSOR OF EUROPEAN LEGAL HISTORY 
COLUMBIA UNIVERSITY 


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Jlew Bork 
COLUMBIA UNIVERSITY PRESS 
1927 


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PRINTED IN THE UNIT 


1 if 
his editorial work on this volume I wish 
i 
GERTRUDE H. Munroe Smit 


FOREWORD 


By FRANK J. Goopnow, LL.D., 
President of The Johns Hopkins University 


My acquaintance with Munroe Smith began in 1882 when as 
a student in the Law School and the newly established School 
of Political Science at Columbia, I heard his lectures on Ro- 
man Law. Later on, in 1883, I was appointed lecturer on 
Administrative Law in the new School of Political Science 
and from that time on until 1913 was thrown into almost 
daily contact with him. The members of the faculty of the 
School were all comparatively, some very, young men. We 
all were enthusiastic in our endeavors to make the new ex- 
periment a success, and to no one more than Munroe Smith 
belongs the credit for the reputation and influence which 
subsequently attached to the School. © 

One of the ventures which we entered upon was the Po- 
litical Science Quarterly. This journal was started in 1886. 
It was agreed by all of us that Munroe Smith was the man 
who should become Managing Editor. And no happier. 
choice could possibly have been made. The accurate schol- 
arship and finish of literary expression which characterized 
even his college years had become emphasized as he had 
grown older. Indeed his desire that everything that was 
published in the Quarterly should be both correct and prop- 
erly expressed was so great that he gave of his time without 
stint to attain the only result with which he would be satis- 
fied. Yet withal he was so tactful and kindly in his criticism 
that anyone who had the benefit of his suggestions could not 
help feeling that a favor had been conferred upon him, and 
was far from having any of that resentment which so com- 
monly attaches to criticism. I was one of those who fre- 
quently had the benefit of his suggestions. I owe him a debt 
which I never repaid, and as I look back on our life together 


Vili Foreword 


at Columbia I can never recall an instance when I felt any- 
thing but gratitude to him although in not a few cases his 
criticism was anything but superficial. 

Munroe Smith’s intellectual attitude was not exclusively 
critical. He was himself a productive and accurate scholar. 
But the years which he devoted to the editorship of the Po- 
litical Science Quarterly — years of tireless and conscien- 
tious work which came at.a time when his productive capac- 
ity was at its greatest — seriously handicapped him in his 
productive work. 

Munroe Smith wrote a number of books, principal among 
which were ‘“‘ Bismarck and German Unity,” “ Out of Their 
Own Mouths,” and ‘‘ Militarism and Statecraft.” He stud- 
ied in Germany just after the Franco Prussian War when 
Bismarck’s figure towered over all Europe. No wonder that 
such a character made a deep impression upon the young 
American student. He read almost everything that was 
written about Bismarck. It is not surprising that his con- 
tribution to an understanding of Bismarck’s life and work 
became almost a classic in its field. The ‘‘ Militarism and 
Statecraft ” was in large measure the attempt to show how 
Bismarck would have acted in the 1914 crisis. The conclu- 
sion reached is aptly set forth in the title. 

But Munroe Smith’s main contributions to the studies 
which he loved are to be found in the articles which he wrote. 
Many of them are devoted to comparatively small portions 
of a large subject. His knowledge was encyclopedic, but he 
had no ambitions to thresh old straw. Indeed his methods 
of work were inconsistent with the production of magna 
opera, certainly in the sense of size. His desire for absolute 
accuracy made it impossible for him to place great reliance 
on the conclusions of others. His insistence on perfection 
made it necessary for him to go over and over again what he 
had written in the hope of improving what he had done. I 
remember he told me once that every time he sat down to 
write a little critical devil perched upon his shoulder and 
kept insisting upon changes. Another time he said that he 


Foreword 1X 


thought no one could attain perfection in prose unless he 
also wrote verse, that the habit developed in writing verse 
of searching for the right word was invaluable when the 
writing of prose began. Munroe Smith did himself write 
verse although little of his verse has been published. 

In closing this very inadequate sketch of Munroe Smith 
I can not refrain from saying how much his death affected 
me. Thirty or more years of intimate companionship, the 
love of a student for a teacher to whom a great debt has 
remained unpaid, the admiration of a colleague for work 
which is now finished all make it a privilege as well as a duty 
to record in this poor way my impressions of his life and his 
work, as well as my affection for a man of remarkable sin- 
cerity, of unusual kindliness, and of great ability. He has 
gone, it is true, but the work which he did will go on. He not 
merely contributed to the advancement of his chosen sub- 
ject. He played as well an important part in the reorganiza- 
tion of higher education in the United States which began 
fifty years ago. 


TABLE OF CONTENTS 


FOREWORD . 
A GENERAL VIEW OF EUROPEAN LEGAL HIsTory . 
THE DOMAIN OF POLITICAL SCIENCE . 
STATE STATUTE AND ComMON Law 
Four GERMAN JURISTS 

BRUNS, WINDSCHEID, JHERING, GNEIST 
RoMAN LAW IN AMERICAN LAW SCHOOLS . 
CusTOMARY Law 
PROBLEMS OF ROMAN LEGAL HISTORY 
JURISPRUDENCE .. 
THE JAPANESE CODE AND THE FAMILY . 


THE DoGMA OF JOURNALISTIC INERRANCY 


THE NATURE AND THE FUTURE OF INTERNATIONAL LAW . 


THE GROWTH OF THE AMERICAN UNIVERSITY . 


THE PRINCIPLE OF NATIONALITY 


310 
330 
365 
398 
416 
432 
439 


A GENERAL VIEW OF 
EUROPEAN LEGAL HISTORY 


AND OTHER PAPERS 


By 
MUNROE SMITH, J.U.D., LL.D., J.D. 


LATE BRYCE PROFESSOR OF EUROPEAN LEGAL HISTORY 
COLUMBIA UNIVERSITY 


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I 


A GENERAL VIEW OF EUROPEAN LEGAL 
ris LC) RY.” 


IN my study of European legal history I have been in- 
creasingly impressed by the fact that in the central and 
western countries of continental Europe, which today form 
independent states, each with its own separate body of laws, 
the development of private or civil law during the past four- 
teen centuries has been essentially similar. The whole move- 
ment has been European. And yet no writer has attempted 
to deal with it from this point of view. There are numerous 
histories of Italian law, of French law, of Spanish law and of 
German law. There are also histories of the legal develop- 
ment of many of the smaller European countries. But there 
exists no general history of European law. 

It is, of course, recognized that in each of these countries 
there were important bodies of law that were common to all: 
the feudal law, the canon law and the law merchant. It is 
also recognized that until very recent times none of these 
countries had anything approaching common and uniform 
private law. Controversies not governed by either feudal 
or ecclesiastical or commercial law were determined pri- 
marily, even in modern times, by local or provincial custom; 
and in none of these countries, except perhaps in those of 
German speech, were these customs sufficiently similar to 
be called national. Even in German-speaking countries 
there were marked differences between the customs of the 
northern and those of the southern territories. All the local 
and provincial customs of western and central Europe were 
blends, in varying proportions, of Roman, Teutonic and 

1 Reprinted from Actorum Academiae Universalis Jurisprudentiae Com- 
parativae, vol. i. (Mémoires de L’Académie Internationale de Droit Com- 


paré. Tome 1.) Berolini, apud Herman Sack; Londini, apud Sweet & 
Maxwell; Parisiis, apud Marcel Riviere. 1927. 


4 A General View of European Legal History 


specifically medizval elements, and in each instance the 
proportion was determined far more largely by the racial 
composition and economic development of each local group 
than by its position in the political map of Europe. 

In the later middle ages the Roman law, as set forth in 
the law books of Justinian, was accepted in most parts of 
central and western Europe as subsidiary law, to be applied 
in all cases in which neither feudal nor ecclesiastical nor 
commercial law was applicable, and in which neither local 
nor provincial custom furnished any rule on which a de- 
cision could be based. Through this reception of the ancient 
Roman law, modern Europe obtained a fourth body of con- 
tinental law —a subsidiary body of rules and principles 
which filled all the chinks and crevices in the private law. 

Until the nineteenth century, accordingly, the ordinary life 
and social relations of all the peoples of western and central 
Europe were governed in part by local and provincial laws, 
in part by European laws. Not until the nineteenth cen- 
tury was there in any of the great modern states of central 
and western Europe any such thing as national civil law. 
The modern national states of the Continent first obtained 
such law by codification, and national codification was itself 
a European movement. 


A history of European law, written from a European 
rather than from the modern national point of view, would 
begin by indicating the conditions existing in Europe in the 
early centuries of the Christian era. Europe, so far as it 
was then civilized, formed part of the Roman Empire. This 
empire, which included all the chief commercial peoples of 
the ancient world, except the Chinese, and all the important 
industrial areas of western civilization, formed one vast 
economic domain of substantially free trade. Roman rule 
had established on land and on sea a hitherto unknown peace 
and legal security. The military roads of the empire were 
also highways of commerce, such as have not since existed 
in the East and only in the nineteenth century again in the 


A General View of European Legal History 5 


West. In this empire the commerce of the world attained a 
. development that was not again equalled until the nineteenth 
century. 

This world empire was governed by a uniform world law. 
In the extension of Roman rule over the Mediterranean basin 
—a movement which began in the third century B.c. — the 
Romans did not impose upon the conquered provinces their 
own civil law. For their provincial subjects they gradually 
developed, partly in provincial courts, but particularly in 
the court of the foreign pretor at Rome, a different body of 
rules, substantially uniform as regarded movable property 
and obligations. These rules were based on very ancient 
commercial customs, possibly carried from Babylon through 
Phenicia to the Mediterranean, in any case long recognized 
in Mediterranean trade. To this customary law, which the 
Romans appropriately called jus gentium, their legal genius 
gave more precise formulation and more systematic presen- 
tation. This law was so superior to their own civil law for 
commercial purposes that it was applied in controversies be- 
tween Roman citizens and Rome’s provincial subjects; and 
it was so much more equitable and progressive that before 
the close of the republican period it was accepted almost in 
its entirety for the determination of controversies between 
Roman citizens themselves. For these their older civil law 
was not indeed abolished, but it was overridden by the re- 
formatory activity of the city pretor. henceforth the 
relation of the Roman civil law and the newer pretorian law 
was singularly like that which was established centuries later 
between common law and equity in England. In both in- 
stances the new law was official law, jus honorarium, based 
on governmental authority; and in both instances it was cre- 
ated by the development of new remedies. The substantive 
rules of English equity appeared in the decisions of the 
chancellors; those of the Roman pretorian law in the in- 
structions given to the judices in the pretorian formulas. 
In its form the edict was legislative; but the significance of 
the pretorian promises of actions and exceptions was re- 


6 A General View of European Legal History 


vealed only in the formulas, to which the edict was but an 
index; and since the wording of the formulas and their in- - 
terpretation were always subject to modification as new cases 
suggested new points of view, the Roman pretorian law, 
like English equity, was in reality what the English call case 
law, and a French writer has described as “ cette législation 
occulte qui s’appelle la jurisprudence.” 

When Caracalla conferred Roman citizenship upon all the 
free inhabitants of the Roman world, what was left of the 
old Roman civil law was indeed extended over the entire em- 
pire, but in this now uniform world law the jus gentium re- 
mained the dominant element. In the earlier imperial pe- 
riod, particularly in the second and third centuries, this 
world law was further developed by the decisions of an im- 
perial supreme court, the auditory of the pretorian prefect, 
and was brought to a degree of refinement which has again 
been reached only in the most modern legal systems. In the 
Pandects of Justinian we have a digest of the decisions of 
this great central court, drawn almost entirely from the writ- 
ings of imperial judges. 

The decline of the Roman Empire in the fourth and fifth 
centuries was but a part of a wider movement, a decline of 
the entire ancient civilization. There was in these centuries 
a marked economic retrogression, of which the causes are 
still a matter of dispute. What we call the fall of the West 
Roman Empire was brought about by the irruption of north- 
ern barbarians, mainly of Teutonic stock. At the close of 
the fourth century and the beginning of the fifth, whole 
tribes of Germans had been permitted to settle within the 
borders of the empire on their agreement to defend these 
borders against the other Germans behind them; and before 
the year 476, when a leader of German mercenaries de- 
throned the West Roman emperor, German kings were al- 
ready in possession of many of the West Roman provinces. 

Into this mass of victorious barbarism some elements of 
Mediterranean civilization had previously been filtering; 
first through Greek and Roman traders, later through Chris- 


A General View of European Legal History 7 


tian missionaries. Many of the German tribes, notably the 
Burgundians, the Vandals, the Goths and the Langobards, 
had accepted Christianity before they swept across the Dan- 
ube or the Rhine. The German invaders were familiar also 
with the Roman military and civil organization and adminis- 
tration. In the later imperial period, the German element in 
the Roman armies and in the imperial bodyguard itself had 
steadily increased, and service in this guard led not infre- 
quently to the highest offices in the empire. 

Given these earlier relations, it is not surprising that the 
Germans who overran Italy and the western provinces had 
no notion that they had destroyed the Roman Empire. They 
regarded it as still existing. The Vandal, Gothic and Bur- 
gundian kings who established their authority in the Dan- 
ubian provinces, in Italy, in southern Gaul, in Spain and in 
Africa, regarded themselves as governors of imperial prov- 
inces and described their armies as imperial armies. ‘They 
sought formal recognition of their authority from the em- 
peror at Rome, so long as there was still such an emperor. 
Later, in several instances, they sought it from the emperor 
at Constantinople. 

Unlike the heathen invaders of Britain, or the heathen 
Franks in their first occupation of northern Gaul, these 
Christian conquerors did not seize all the land held in private 
ownership. They followed, in most instances, the Roman 
military practice and quartered themselves, or rather thirded 
themselves, on the provincial proprietors. This system of 
settlement, which scattered the Germans through the Ro- 
man civilian population, helps to explain the fairly rapid 
acceptance by the German conquerors of the vulgar Latin 
speech and the gradual amalgamation which has produced 
the modern Italian, French and Spanish nations. Amalga- 
mation was blocked at the outset by religious differences. 
The Vandals, the Goths, the Burgundians and the Lango- 
bards had been converted by missionaries who held Arian 
tenets, and they came into an empire in which Arianism had 
become a heresy. Sooner or later, however, all these Ger- 


8 A General View of European Legal History 


mans accepted the Nicene creed; the Franks, like the Saxons 
in England, passed directly from heathenism to orthodox 
Christianity; and the religious bar to intermarriage disap- 
peared. 

The German conquerors, however, did not subject them- 
selves to the rules of the Roman law. According to their 
theory, the law governing each person was that of his tribe, 
and this law each tribesman carried with him everywhere. 
From this point of view it logically followed that the provin- 
cials, who were regarded as members of one great Roman 
tribe, were entitled to live by their own Roman law. Illogi- 
cally, but quite intelligibly, it was also held that in contro- 
versies between Germans and Romans German tribal law 
should prevail. 

The German tribal laws had however been modified, even 
before their invasion of Roman territory, by trade relations 
with the Mediterranean world. In the earliest written Ger- 
man laws fines and compositions were no longer measured in 
cattle but in Roman coin. And with their acceptance of 
Christianity the Germans accepted, in theory at least, the 
Christian view of marriage. The German nobles, indeed, 
who in the time of Tacitus “‘ had many wives on account of 
their nobility,’ long remained imperfectly monogamous, not- 
ably in medizval Spain; but here as elsewhere the “ wife of 
benediction ” had a status superior to that of other wives. 
The church was able to secure also the recognition of testa- 
ments. On the other hand, the Roman law, by which the 
provincials were in theory living, was gradually modified in 
some important respects by their acceptance of Teutonic cus- 
toms. This was largely due to further economic retrogres- 
sion and a general reversion to simpler social conditions. To 
such conditions Teutonic tribal customs, because they were 
more primitive, were in some respects better adapted than 
were the refined and progressive Roman rules. For example, 
the independent property rights of married women, recog- 
nized in Rome before the close of the republican period, 
soon fell into abeyance. In the later customs and laws of 


A General View of European Legal History 9 


medizval Europe, even in Latin countries, the control of the 
wife’s property was usually in the hands of the husband. In 
theory, marriage established a “community” of goods, a 
sort of partnership, but the wife was a silent partner. The 
so-called Roman law, by which the provincials lived, was 
“broken,” like their Latin speech. 


The period from the fifth to the ninth century may be 
described as a period of interpenetration and reciprocal mod- 
ification of Roman and German legal institutions. During 
these centuries the smaller German kingdoms were replaced 
by broader unions. The earliest of these, the Ostrogothic 
kingdom, extended for a time from the Danubian provinces 
to southeastern Gaul and included a great part of Italy. 
In this kingdom the continued existence of the Roman Em- 
pire was strongly emphasized. King Theodoric insisted that 
he and the emperor at Constantinople were joint rulers of a 
single empire, wnum corpus. He even asked the East Ro- 
man emperor to confirm some of his appointments. Early in 
the sixth century he issued a brief code of laws, in order, as 
he stated, that barbarians and Romans alike might know 
what rules they were to observe. This kingdom, however, 
was soon overthrown by the armies of Justinian, and its legis- 
lation exercised no appreciable influence upon the later de- 
velopment of Italian law. Nor did the temporary re-union of 
Italy with the East Roman Empire in the sixth century ex- 
ercise any abiding influence. Before the close of the century 
northern Italy fell under the rule of new invaders, the Lango- 
bards. In the development of the Langobard law, which at 
first was almost purely Teutonic, we find an increasing in- 
filtration of Roman rules, particularly after the Langobards 
abandoned the Arian heresy. Their laws remained in force 
when their kingdom was conquered by Charlemagne, and 
Lombard law in its further development constituted an im- 
portant element in Italian law. 

The Visigothic kingdom in southwestern Europe was es- 
tablished earlier and lasted much longer than that of the 


10 A General View of European Legal History 


Ostrogoths. Visigothic kings obtained control of southern 
Gaul and of the greater part of Spain early in the fifth cen- 
tury; and after their expulsion from Gaul by the Franks 
they reigned in Spain until the beginning of the eighth cen- 
tury, when nearly all Spain was conquered by the Moors. 

In this, as in the other German kingdoms established on 
Roman soil, the Goths at first lived by Gothic law and the 
provincials by Roman law. In both fields there was impor- 
tant legislation. For the use of his Roman subjects King 
Alaric II promulgated in the year 506 a handbook of Roman 
law, made by a committee of provincial Roman lawyers and 
accepted by an assembly of bishops and other provincial 
notables in Gascony. This Roman law of the Visigoths or, 
as it is more commonly called, this Breviary of Alaric, was 
largely used in Gaul and in the German portions of the 
Frank Empire, whenever Roman law was invoked as per-- 
sonal law. Until the twelfth century it was indeed almost 
the only source from which Roman law was drawn in west- 
ern Europe, except by ecclesiastical writers. 

Written statement of Visigothic law began earlier, in the 
latter part of the fifth century. It is believed that a palimp- 
sest, now in the Paris National Library, gives a portion of 
this ancient Gothic code in its original form. If so, this is 
the oldest existing bit of written German law, antedating 
the famous Salic law. 

The development of Visigothic legishetiaa went on without 
interruption until Spain was overrun by the Moors. In the 
middle of the seventh century, however, an important change 
took place: the Roman laws were put out of force and the 
Visigothic laws were imposed on all the inhabitants of the 
kingdom. But the Visigothic code was already largely Ro- 
manized. After the acceptance of orthodox Christianity by 
the Visigothic kings, all revisions of this code were evidently 
made by ecclesiastics. It is attested that they were approved 
by the Visigothic Council, in which the prelates largely out- 
numbered the barons. In the end, at the beginning of the 
eighth century, the Visigothic code had become distinctly 


A General View of European Legal History 11 


ecclesiastical in form, and on the whole more Roman than 
Gothic in substance. 

Here we have the first attempt to fuse Roman law, civil 
and ecclesiastical, and German law in a single code. It is 
doubtful, however, to what extent the rules laid down in this 
code actually governed the life of the people. The Visi- 
gothic kingdom was frequently torn by civil discord and was 
at times in a state of anarchy. After the Moorish conquest 
we find, in the little Christian kingdoms that survived in 
northern Spain, institutions and rules characteristically Teu- 
tonic and unrecognized in the Visigothic code. Because of 
this prompt reversion of the Spanish people to more primi- 
tive customs and rules, it seems probable that this great code, 
in many respects singularly progressive, was never fully en- 
forced, and that its rules represented rather the aspiration of 
churchmen to put their moral ideals on the statute book than 
a serious effort to enforce them — a tendency that is not con- 
fined to ecclesiastics and seems in some cases to inspire mod- 
ern legislation. 

‘The latest of these empires, that of the Franks, was by far 
the most important. At the close of the eighth century it in- 
cluded all those parts of continental Europe which were 
Christian and which recognized the spiritual supremacy of 
the bishop of Rome. To all contemporaries it must have 
seemed a thoroughly appropriate recognition of this fact 
that, on Christmas Day, 800, Charlemagne, king of the 
Franks and Langobards, received from the bishop of Rome 
the Roman imperial crown. The imperial tradition was still 
a living force. It had indeed gained new strength through 
the development of the idea that all Christian peoples ought 
to form a single great commonwealth. 

Over against this reéstablished West Roman Empire stood 
only one other important political organization, the East 
Roman or Byzantine Empire. Between these two empires 
ran lines not only of political separation but also of official 
language. More important than these was a third line of 
cleavage, that of religious antagonism. The division of the 


12 A General View of European Legal History 


Christian world into two great churches, the Roman Catholic 
and the Greek Orthodox, had profound and enduring results. 
The eastern Slavs were converted to Christianity by Greek 
missionaries, and the Mediterranean civilization, which came 
to central and western Europe from Rome, came to them 
from Constantinople. Thenceforth the development of east- 
ern and southeastern Europe, not in religion only but also in 
politics and in law, proceeded on separate lines. 

In the Frank Empire the tribal notion of law prevailed as 
fully as in the earlier German kingdoms. In this empire, 
however, no superiority was attributed to Frank law over 
any other German tribal law, nor was any German tribal law 
permitted to override the Roman law. As often as legal 
transactions took place or legal relations were to be estab- 
lished between persons living by different laws, it was recog- 
nized as necessary either to observe the forms required by 
each law or to determine which should be chosen. In legal 
controversies between persons living by different laws, it was 
necessary to decide which of the two laws should govern the 
forms of pleading and the decision of each disputed point. 
Before the dissolution of the Frank Empire a considerable 
body of rules had been established governing these conflicts 
of law, and that great body of modern law which we call 
international private law may rightly be said to have its 
earliest roots in the laws of the Frank Empire. 

In this empire we find also the beginnings of a general or 
common law of the realm, overriding all the tribal laws and 
Roman law. No such codification as that which Spanish 
churchmen had elaborated was attempted; but cases could 
be drawn by royal writ, and were drawn with increasing fre- 
quency, from the local courts to the king’s court, and in this 
court neither Frank law nor any other tribal law nor Roman 
law governed the decisions. Each case was to be decided 
secundum aequitatem. In the reign of Charlemagne the ac- 
tivity of this central court was supplemented by a division of 
the realm into judicial districts, into each of which two itin- 
erant justices were sent each year to ride circuit and to hold 


A General View of European Legal History 13 


courts. Here was already the judicial machinery which was 
set up in England three centuries later by Henry II and by 
which the English common law was gradually built up. In 
the Frank Empire there were also the beginnings of general 
legislation by royal ordinances. At the close of the Frank 
period the more important ordinances were submitted for 
approval to the magnates of the realm, secular and spiritual, 
convoked in annual assembly. In the Frank Empire, how- 
ever, these judicial and legislative organs were developing 
law for.a far wider area than England, for the greater part 
of central and western Europe. If this empire had held to- 
gether and if its law-making organs had remained active, the 
greater part of Europe would to-day be governed, as England 
has long been governed, by uniform law. 

After the dissolution of the Frank Empire Europe fell into — 
political chaos. Authority was so divided and subdivided 
that, even in those countries in which royal authority was 
first gradually consolidated, no efficient organs for the de- 
velopment of common law could be established. The kings 
had too little power to draw appeals to their courts. The 
assemblies of magnates, secular and spiritual, gradually en- 
larged by the admission of representatives from the cities, 
were chiefly solicitous to preserve and increase their rights 
and immunities, and were therefore little interested in gen- 
eral legislation. 

The progressive legislation of the Frank Empire, except 
where its provisions had been introduced into the various 
tribal laws and were thus in some measure preserved as local 
usages, lapsed into desuetude. Europe was governed pri- 
_ marily by customary laws. These gradually ceased to be 
personal and became local. The individual was subjected 
primarily, if he were serf or tenant, to the custom of the 
manor; if he were a freeman, to the custom or law of the 
county or city. 


Across this maze of customs there stretched, in the tenth 
and following centuries, two European bodies of law: the 


14 A General View of European Legal History 


feudal law and the ecclesiastical law. Both systems had 
older roots. The economic basis of feudalism was serfdom, 
the tillage of the soil by men bound to the soil. In the con- 
quered Roman provinces the Germans found almost all the 
agricultural land in the ownership either of the emperor, of 
municipalities, of ecclesiastical foundations or of secular 
magnates (potentes), and most of these estates were tilled 
by serfs. In the German portions of the Frank Empire there 
was from the outset a similar class, described as “ half free,” 
but as a rule the land was tilled in small parcels by free- 
holders. Before the end of the Frank period, however, great 
landed estates had developed here also, and the great ma- 
jority of the German freeholders had been forced into the 
position of lessees or of serfs. At the same time, both in the 
Latin and German territories of the empire, slaves to whom 
definite holdings had been assigned for tillage (servi im- 
quilini) were gradually rising to the higher status of serfs. 

In the Roman Empire many of the great estates enjoyed 
what was already termed immunity, and in the Frank Em- 
pire a similar immunity was extended to the great estates, 
ecclesiastic and secular, in the German territories. In both 
empires, immunity meant only what we should today de- 
scribe as limited powers of local government. In no case 
were the lords of these estates immune against the central 
authority. In the political disintegration of Europe which 
followed the fall of the Frank Empire, every lord of a manor 
became substantially the sole ruler of his domain. His in- 
dependence was limited indeed by his duties to his overlord, 
but the overlord had no authority over his vassal’s under- 
lings. | 

Of the higher feudal tenures, the earliest to develop was 
tenure by knight service. This first took definite form in 
the Frank Empire. In the time of Charles Martel, when the 
Moors swept from Spain into Gaul, it was found necessary 
to meet the Moorish light cavalry, against which the German 
infantry was of little value, by the development of a superior 
heavy cavalry. Armored knights were already to be found 


A General View of European Legal History 15 


in the retinues of the king and of the magnates, but far 
greater numbers were needed. The problem of their equip- 
ment and maintenance was solved by a sweeping confiscation 
of church lands, justified by the peril of Christendom. 
These lands the Frank rulers distributed in large tracts 
among their most trusted followers, who redistributed them 
among their followers on the condition of knight service. 
The whole process resembled the award of a public-service 
contract to a few responsible contractors and the sub-letting 
of the work to subcontractors. In this process we have, per- 
haps, the origin of the chain of intermediate tenures between 
the king of each country and the holders of knight fees. 
And in the principle that a subcontractor is directly respon- 
sible only to the person with whom he has contracted we 
have perhaps the origin of the rule of continental feudalism 
that “ the man’s man is not the lord’s man ” — a rule which 
produced that disintegration of political authority which 
followed the break-up of the Frank Empire and which re- 
duced direct royal power to a shadow. 

Once definitely established in the military organization of 
Europe, the principle of tenure by service was gradually ex- 
tended into other fields. In the Frank Empire dukes, mar- 
graves and counts were in theory, and in practice also 
through the reign of Charlemagne, royal officers holding 
their position at the king’s pleasure. Under the later and 
weaker Frank rulers, as previously in the Visigothic king- 
dom, these offices came to be held for life; and after the dis- 
ruption of the Frank Empire all these offices, and also the 
great court offices, were regarded as heritable fiefs, and the 
royal lands which had been held as the appanage of such 
offices, their yield amounting to salary, were treated as land 
held on the tenure of political service. Land held by eccle- 
siastical dignitaries or foundations, in so far as it was not 
burdened with the duty of military service, was similarly re- 
garded as held on the tenure of religious and charitable serv- 
ices —in the Norman-English phrase, tenure of frankal- 
moign. 


16 A General View of European Legal History | 


The feudal law thus became the public law of medizval. 
Europe. It became also the private law of Europe as re- 
garded land tenures. Nearly all the land in the open coun- 
try was held on some feudal tenure, and the towns also had 
their feudal lords. ‘There were, however, extensive terri- 
tories in which the land was never feudalized. In Scandi- 
navia feudalism gained little or no foothold. The same was 
true of the forest cantons of Switzerland. ‘These territories 
may be said to have had no middle age; they passed almost 
directly from primitive Teutonic to modern conditions. And 
in other parts of Europe — for example, in Westphalia and 
in the Basque provinces of Spain — we find throughout the 
middle ages a free peasantry with fairly substantial holdings. 
In the towns, as these grew in population and in wealth and 
fought or bought themselves free from their feudal lords, 
municipal courts of final jurisdiction were established and 
feudal tenures disappeared. me | 

For the development of the feudal system by legislation 
there existed, after the dissolution of the Frank Empire and 
during the following four centuries, no organs of wider au- 
thority than the diets or estates of the Holy Roman Empire 
and of the western kingdoms, and the activity of these bodies 
was confined to the field of public law. For the development 
of the feudal law by judicial interpretation, authority was 
even more widely dispersed. The imperial and royal courts 
had original jurisdiction only over the immediate feudatories 
of the crown. From the courts of these and of the lower 
mesne lords, and from the manorial courts, there was, as a 
rule, no appeal to any higher tribunal. In spite of these con- 
ditions, which favored an unlimited diversity of judgments, 
the feudal law remained essentially European. The substan- 
tial uniformity of its rules resulted primarily from the fact 
that the social and economic bases on which they rested 
were everywhere similar. Variations and changes were 
European rather than local. Throughout Europe, for ex- 
ample, the serfs on ecclesiastical domains enjoyed a status 
superior to that imposed on the serfs of nobles and knights. 


A General View of European Legal History 17 


In Spain and in France, as in England, the serfs on royal 
domains had an even better position. Economic changes, 
operating throughout central and western Europe, every- 
where produced similar results. When the supply of agri- 
cultural labor was lessened by the movement of population to 
the towns, the position of the serfs was bettered. When this 
movement slackened, there was a corresponding deterioration 
of the servile status. As regarded the higher feudal tenures, 
also, the development of the law was European rather than 
national. Everywhere lay fiefs became heritable; almost 
everywhere female succession was permitted in default of 
male heirs; and, with few exceptions, the exclusive right of 
the first-born disappeared, fiefs becoming divisible. Uni- 
formity of law was largely promoted by imitation, and par- 
ticularly by the recognition accorded in this, as in other 
branches of medizval law, to the written word. Certain 
early compilations, notably the Lombard Libri Feudorum, 
obtained general recognition as authoritative statements of 
feudal law. | 

- To comprehend the great influence exercised in the mid- 
dle ages by the Christian church, we must remember that 
on the church rested in the main the task of perpetuating the 
ancient Mediterranean civilization and adapting it to medi- 
eval conditions. Not only were the medizval rulers de- 
pendent upon the clergy, as the only educated class, for 
the efficient conduct of their civil administration, but many 
of the social duties which are today discharged by the state, 
notably education and poor relief, were necessarily dis- 
charged by the church, because the medieval state attempted 
little more than the defence of its frontiers and the main- 
tenance of internal peace. We must also remember that the 
Teutons, although their personal morality, like that of many 
other barbarians, was in some respects superior to the mor- 
ality of civilized society, had little notion of social morals. 
To train them in social morality was perhaps the chief task 
of the medieval church; and for the successful performance 
of this task the machinery employed by the church — peri- 


18 A General View of European Legal History 


odical confession, penance, exclusion from the sacraments 
and excommunication — was assuredly efficient and possi- 
bly indispensable. 

In the strictly legal field we should note that throughout 
the later middle ages the church exercised a practically ex- 
clusive jurisdiction over its clergy. Clerks charged with 
crime were amenable solely to ecclesiastical jurisdiction, and 
even civil suits against them were commonly brought in the 
ecclesiastical courts. Over the laity also the Christian 
church exercised a very wide jurisdiction, extending over 
many matters which the Roman law regarded, and modern — 
law again regards, as falling within the exclusive jurisdic- 
tion of the secular courts. 

The roots of ecclesiastical jurisdiction are to be found in 
the Roman Empire. The church had, of course, disciplinary 
jurisdiction over its clergy and, as it developed a hierarchic 
organization, this jurisdiction became increasingly effective. 
In the later Christian period, when a clergyman was charged 
with crime, the church was usually granted a stay of pro- 
ceedings in the secular court until the ecclesiastical court . 
had investigated the matter. If this court found the clergy- 
man guilty it unfrocked him. He then appeared in the secu- 
lar court as a layman, and the scandalous spectacle of a 
clergyman in the dock was avoided. Acquittal by the ec- 
clesiastical court, however, was no bar to the course of secu- 
lar justice. 7 

In the Frank Empire, after protracted controversy, the 
church succeeded in withdrawing its clergy from the 
jurisdiction of the ordinary criminal courts. If the ac- 
cused person was found innocent, no further proceedings 
could be taken against him. If, however, he was found 
guilty, he was delivered to the secular power for punish- 
ment. 

Of greater importance was the jurisdiction of the ec- 
clesiastical courts over the Christian laity. This also had 
its roots in the Roman Empire, partly in the disinclination 
of the early Christians to submit their controversies to the 


A General View of European Legal History 19° 


heathen courts, but chiefly in the wide jurisdiction assumed 
by the church over the sins of its members. In the Roman 
Empire, even after Christianity became the state religion, 
this jurisdiction was extra-legal. The sanctions by which 
the church enforced its moral code were moral, not legal. 
The penalty of excommunication was indeed extraordinarily 
severe; it amounted to ostracism and assumed increasingly 
the features of a boycott. It had, however, no direct effect 
upon the legal status of the excommunicated person. 

In the Teutonic kingdoms, however, at least when these 
kingdoms became not only Christian but orthodox, legal 
force was attached to excommunication. It became a Euro- 
pean rule that an excommunicate who failed to make his 
peace with the church within a year and a day was ipso 
jure outlawed. Given this secular sanction, it is hard to see 
why the so-called Penitentials, in which sins and the appro- 
priate penalty for each sin were elaborately catalogued, 
_were not law books in the strictest sense of the word. 

In these kingdoms, however, and even in the Frank Em- 
pire, the church courts claimed no exclusive jurisdiction in 
matters satisfactorily regulated by the secular law. As long 
as the rules on which the church insisted were embodied in 
the tribal laws or in supplementary legislation, the church 
was content to leave their application to the secular courts. 
It could always fall back, if necessary, on the concurrent 
jurisdiction which it exercised over sins. ° 

In all these kingdoms, and particularly in the Frank Em- 
pire, the relation between church and state, in spite of oc- 
casional conflicts, was that of codperation rather than of 
rivalry. Under Charlemagne this codperation reached its 
highest development. After his death, however, the atti- 
tude of the church began to change. It became increasingly 
evident that the unity of the empire could not be maintained, 
and it was felt that the position of the church must be 
strengthened. Without an emperor to protect it, it would 
need greater independence. We find accordingly, in the 
ecclesiastical utterances of the middle decades of the ninth 


20 A General View of European Legal History 


century, an increasing exaltation of spiritual over secular 
authority and an increasing demand for the independence 
of the church and for its more efficient organization under 
the central authority of the pope. 

An important part of this movement for the greater inde- 
pendence of the church was the demand for an exclusive 
jurisdiction of the ecclesiastical courts in many matters of 
importance, particularly in matrimonial cases. This it ob- 
tained, and it gained at the same time an increasing juris- 
diction, concurrent with that of the secular courts, both in 
criminal and in civil cases. 

For the development of the ecclesiastical or canon law 
the church had adequate central organs. Legislative power 
was exercised by its councils and an extensive ordinance 
power was vested in the pope. From the ordinary ecclesi- 
astical court, that of the bishop, appeals ran to Rome; and 
the pope, as universal ordinary, had-an unlimited original 
jurisdiction. The judicial authority vested in the bishops — 
and the pope was not, as a rule, directly exercised. The 
church developed a body of trained ecclesiastical lawyers, . 
an ecclesiastical bar; and from this bar judges were drawn. 
The judicial authority of the bishop was usually delegated 
to a subrogatus of adequate legal training, and that of the 
pope was exercised by a bench of learned judges. It was 
chiefly through decisions rendered by the central court at 
Rome that the canon law was elaborated and refined. It 
was largely because of its superior judicial organization and 
the more refined and progressive character of its law that 
the church was able to secure so broad a field of jurisdiction 
as it held throughout Christendom during the later middle 
ages. Within the field recognized as ecclesiastical, the judg- 
ments of the church courts received secular recognition and 
support. . 

Ecclesiastical procedure was based on that of the late 
Roman Empire. In criminal cases it was inquisitorial in the 
technical sense, in that the court had not to wait for formal 
accusation by any complainant, but might take jurisdiction 


A General View of European Legal History 21 


on information or on common report. _In both criminal and 
civil cases procedure was inquisitorial in the popular sense 
of the word, in that the ecclesiastical judge sought to discover 
the facts by direct examination of the parties and of the 
witnesses. This is, of course, necessary in all cases where a 
judge has to render decision on the facts. 

As compared with procedure in the local secular courts 
of the middle ages, ecclesiastical procedure was rational and 
progressive. It was, however, cumbrous and slow, because 
testimony was largely taken in the form of depositions — a 
practice which made cross-questioning of witnesses impos- 
sible except by taking further depositions — and because, 
for the purpose of eventual appeal, all testimony, pleadings 
and judgments had to be put into written form. 

Gratian’s famous digest of the statutory and case law of 
the church, made about 1140, was so thorough and so exact 
that in practice it was accepted as authoritative. Later com- 
pilations, made under papal authority, were simply supple- 
ments to Gratian’s digest, and consisted even more largely 
of case law. In 1582 there was published, under the author- 
ity of Gregory XIII, a revised official edition of Gratian’s 
digest and of the supplementary collections. This consti- 
tuted, until our own day, the Corpus Juris Canonict. 

When it was issued, the pope’s writs were no longer run- 
ning throughout Europe; but in most Protestant countries 
Protestant ecclesiastical courts long continued to exercise 
much of the jurisdiction previously held by the courts of 
Catholic Christendom. In these Protestant church courts 
the older canon law was applied, except where variant rules 
had been introduced after the Reformation. 


Of later development, but of no less importance, was a 
third body of European law, the law merchant. In inland 
towns it was developed at periodical markets or fairs, such 
as that held in our own day (at least until the recent world 
war) at Novgorod in Russia —fairs to which merchants 
came from great distances. In seaports visited by trading 


22 A General View of European Legal History 


vessels the law merchant was in continouus development. 
At the fairs and in the seaport towns mixed courts were 
commonly instituted, in which foreign and local merchants 
sat together and found judgments. In these courts the com- 
mercial customs of different regions met and waged a peace- 
ful contest for mastery, in which the better custom tended 
to prevail. 

It was especially in the courts of the seaport cities that 
common commercial law was developed, and it was in the 
courts of the Italian cities that a common maritime law was 
first established. From Italy this law spread to Spain and 
France and, following the lines of sea trade, to the Nether- 
lands, to Germany, to England and to Scandinavia. From 
the seaports rules which were applicable to trade in general 
struck inland, following the routes of land trade. Both by 
sea and by land still other commercial customs spread 
through Europe; and just as the maritime law of Pisa served 
as a model for that of Barcelona, that of Barcelona for that 
of Oléron, that of Oléron for that of Wisby and that of Wisby 
for that of Bristol, so the custom of Lombard bankers spread 
throughout Europe and created a uniform law governing 
drafts and bills of exchange. 

That Italy exercised a preponderant influence in the de- 
velopment of the law merchant was apparently due to the 
fact that Italian cities first contested the supremacy of Con- 
stantinople in the oriental trade and first revived Mediter- 
ranean trade on a large scale; but it was due also to the fact 
that the Italian cities were not making wholly new law. 
These cities were in close touch with the East, where the 
Mediterranean custom of merchants, as embodied in the 
Roman jus gentium, had never lost its authority. Building 
on such foundations the Italian cities constructed better 
law than was being made in Spain, in France or in Germany. 

It is commonly said that the law merchant of the middle 
ages was simply mercantile custom. But here, as in all cases 
in which custom is said to have made law, we notice that the 
only customs that were binding were those which were rec- 


A General View of European Legal History 23 


ognized and enforced by courts. What enabled the mer- 
chants to transform their custom so largely into law was the 
fact that they had their own courts. 

Certain compilations of maritime law obtained general 
recognition throughout Europe. The Consulate of the Sea, 
which appeared at Barcelona in the thirteenth century, the 
Charte d’Oléron and the Waterrecht of Wisby formed a 
continuous chain of maritime law, extending from the eastern 
Mediterranean to the Straits of Gibraltar and along the 
coasts of the Atlantic to the North and Baltic seas. 


In England these three great bodies of European law, the 
feudal law, the canon law and the law merchant, enjoyed 
the same authority as on the Continent. William the Con- 
queror brought to England the Frank feudal law in the 
fuller development which it had attained in the tenth and 
eleventh centuries. He and his successors, however, took 
good care that the disintegrating tendencies of continental 
feudalism, which had made the dukes of Normandy so largely 
independent of the French crown, should not be developed 
in England. The continental doctrine that the man’s man 
was not the lord’s man obtained no recognition. The direct 
authority of the king over all the inhabitants of England was 
asserted from the outset, and on the whole effectively main- 
tained. When Henry II established a centralized judicial 
organization, his courts at once took jurisdiction of feudal 
cases, and under his successors the lower feudal courts, ex- 
cept those of the manor, were soon deprived of all real au- 
thority. The fact that one of the first fields in which a com- 
mon law of England was effectively developed was that 
of feudal law had the result that the English law of real 
property today retains more traces of the feudal system than 
the law of any continental European state. 

Of the law merchant the king’s courts assumed no general 
control until the Tudor period. Until that period commercial 
cases were decided, as on the Continent, in independent 
commercial courts. When commercial cases were drawn 


24 A General View of European Legal History 


into the royal courts the law merchant, except in ad- 
miralty cases, ceased to be a separate body of law. It be- 
came, especially through the decisions of Lord Mansfield, an 
integral part of the English common law. As earlier in 
Rome, the general law was itself so far commercialized as 
to meet all the needs of trade. 

Ecclesiastical law was administered in special ecclesiasti- 
cal courts until the nineteenth century, and, as on the Con- 
tinent, the general canon law of Europe, as it existed before 
the Protestant Reformation, furnished the starting point 
for all further developments. ‘The theory that before the’ 
time of Henry VIII England was governed by a special 
‘““king’s canon law” is, as Maitland has demonstrated, a 
legal fiction. 

The fact that the ecclesiastical law and the law merchant 
were not originally English but European law, and the re- 
sultant fact that a special training was desirable for their 
interpretation and application, led to the development of a 
special bar for ecclesiastical and admiralty cases. The mem- 
bers of this bar had their offices, not in the Inns of Court, 
but in Doctors’ Commons. And today the special character 
of these European elements in the English law is empha- 
sized in the existence of a special judicial division of Pro- 
bate, Divorce and Admiralty. In the United States admi- 
ralty jurisdiction is exercised exclusively by the federal 
courts; and in many of our states we still have special courts 
of first instance dealing with fragments of the ecclesiastical 
law; courts variously described as surrogates’ or orphans’ 
or probate courts. 

The great difference between English legal development 
and that of continental Europe is to be found in the fact 
that in England the royal courts instituted by Henry II 
speedily created a common custom of the realm, while on the 
Continent there was, at the time, no similar development. On 
the Continent, all cases that were neither feudal nor ecclesi- 
astical nor commercial were decided, until a much later 
period, by local courts of the popular type, from whose deci- 


A General View of European Legal History 25 


sions there was commonly no appeal. When the royal or 
princely authority became sufficiently consolidated to es- 
tablish local courts composed of learned judges, and to draw 
appeals to central courts of the same character, local and 
provincial customs were too firmly established to be ignored 
in judicial decisions, and all that the new appellate courts 
could ‘accomplish was to develop subsidiary law. In 
the application of the customary law, the medieval 
rule that local law took precedence over provincial law, 
and provincial law over general territorial law, was al- 
most universally observed until the nineteenth century, 
except where the general rule was established by legis- 
lation. General legislation, however, whether proceed- 
ing from diets or estates of the medieval type or from 
the expanded ordinance power of autocratic rulers, dealt al- 
most exclusively with matters of governmental organization 
and administration, including judicial procedure, and with 
criminal law. Until the period of national codification, there 
was little legislation in the field of private or civil law. 


Throughout central and western Europe there was, in the 
eleventh and following centuries, urgent need of new and 
more refined law. ‘The revival of commerce was but one 
phase of a wider movement, a general economic advance. 
There was a simultaneous industrial development. Land 
ceased to be the chief form of wealth; personal property 
grew in variety and in importance. These profound and 
Sweeping changes required new law. In England the new 
law that was needed was provided to some extent by 
acts of Parliament; to a greater extent by the further 
development of the common law; but chiefly by the 
rapid development of equity. On the Continent the new 
law required could not be created by legislation, because 
there were here no efficient organs of general legislation. It 
could not be developed in the feudal or in the ecclesiastical 
courts, because the cases in which new law was most needed 
were not within their competence. The feudal courts had 


26 A General View of European Legal History 


but slight and incidental jurisdiction over personalty. The 
ecclesiastical courts had such jurisdiction only in the ad- 
ministration of testaments, in the distribution of the goods 
of intestates and in matrimonial cases. Over contracts the 
feudal courts had no jurisdiction, nor had the church courts 
such jurisdiction, except in cases of vows, oaths and pledges 
of faith, and in cases of usury, which meant the taking of 
any interest on loans of money. In these matters the doc- 
trines of the church were not an aid but an obstacle to eco- 
nomic and legal progress. Nor could even the commercial 
courts develop all the new law that was needed, because 
they had no jurisdiction except over strictly commercial 
controversies. The only courts that were in theory compe- 
tent were the popular courts. These, however, were not so 
organized as to be able to adapt their ancient customs to the 
needs of a changing social order. In the open country these 
courts were composed of the resident land-holders: nobles 
and knights and, in some districts, free peasants. The city 
courts were composed, in most cases, of officials whose duties 
were primarily administrative. 

From the point of view of comparative jurisprudence the 
composition of these local courts was abnormal. In the nor- 
mal development of law decisions are either rendered by ex- 
perts or virtually controlled in questions of law by expert 
opinion. In the very earliest stages of legal development the . 
interpretation of custom and its application in controverted 
cases is usually controlled by priests. In early law, as in re- 
ligion, priests are the custodians of tradition, and its au- 
thoritative interpretation rests in their hands. At a later 
period secular experts emerge by a sort of natural selection. 
In the later centuries of the Roman Republic the rulings 
of the unlearned magistrates and the decisions of the judices 
were virtually determined by the expert opinions of unof- 
ficial jurisconsults. In the early German tribal courts judg- 
ments were always formulated by a few “wise men” or 
‘law speakers.’ In the final stages of legal development, 
judgments are rendered by official experts, that is, by 


A General View of European Legal History 27 


learned judges. In continental Europe, however, until near 
the close of the middle ages, judgments were rendered in the 
popular courts by judges destitute of any legal training, ex- 
cept what they might acquire in trying and deciding contro- 
versies. 

Abnormal again, and a fatal impediment to the develop- 
ment by judicial decisions of the new law that was needed, 
was the general lack of higher courts of appellate jurisdiction. 
Courts of justice are legal laboratories. Their decisions are 
social experiments. The rule laid down, especially in a case 
involving a novel question, is a tentative rule. If it does not 
work well, it is subject to modification in later and similar 
cases. In courts of justice, as in other laboratories, con- 
clusions of value are reached only gradually by repeated ex- 
periments, and their value is in proportion to the number 
and variety of the experiments. In a purely local court no 
such number nor any such variety of cases is presented for 
consideration and judgment as in a court to which cases 
are brought from a wider area. In imperial Rome cases 
came to the supreme imperial court from the whole area of 
western civilization. In England cases came to the royal 
courts of Westminster from an entire kingdom. Later, ap- 
peals ran to the Privy Council from all parts of the British 
Empire. 

In the self-governing cities of the Continent, indeed, 
greater progress was made than in the rural districts in the 
task of adapting the local laws to the new social and eco- 
nomic conditions. City judges were in most cases better 
qualified for their duties than were the rural judges. At- 
tainment of official position in a self-governing community 
implies a higher degree of ability than the inherited posses- 
sion of land. In the cities, moreover, notably in the city 
republics of Italy, there was earlier and more frequent legis- 
lation in the field of private law than elsewhere on the Con- 
tinent. In some cases there was apparently, as in many 
countries today, too much legislation. Dante’s complaint 
that his fellow citizens changed their laws as often as the 


28 A General View of European Legal History 


fashion of their dress might well be echoed by a modern 
satirist. Despite such aberrations, European city laws were 
clearly more progressive, and have exercised a greater in- 
fluence upon modern European civil law, than any other 
contemporaneous local or territorial laws. At the best, 
however, in spite of the extent to which the laws of the older 
and more important cities were imitated or borrowed in their 
entirety by other cities, the city laws were provincial, not 
European, nor even national. There was need at the time 
not only of progressive law but also, and even more, of gen- 
eral law; and the development of variant city laws repre- 
sented a new element of diversity and of resultant incon- 
venience —an inconvenience that was intensified by the 
simultaneous increase of inter-regional relations and of in- 
dividual changes of domicile. Conflicts of law were so fre- 
quent as to give a marked stimulus to this branch of legal 
literature. | 

The reception of the law books of Justinian as subsidiary 
law for nearly all western and central Europe —an event 
which gave to Europe a fourth great body of continental 
law — is to be explained, first, by the general need for new 
and more refined law, and second, by the non-existence of 
law-making or law-finding organs that could supply the new 
general law that was needed. From this point of view we 
are able to understand why the Roman law was not re- 
ceived or not completely received in certain parts of Europe. 
It was not received where it was not needed. It was ac- 
cordingly not received in countries where economic condi- 
tions were still so simple that the old laws and customs 
were still satisfactory. Therefore it was not received in 
Scandinavia, for instance, nor in the old forest cantons of 
Switzerland. In other countries where new law was needed 
the Roman law was not received, or at least not fully re- 
ceived, because in these countries adequate law-making or 
law-finding authorities were already in existence or in proc- 
ess of development. In England, for example, and in the 
Spanish kingdoms of Aragon and of Castile, the law books of 


A General View of European Legal History 29 


Justinian were not received, or not directly and fully re- 
ceived, because in these countries there were adequate legis- 
lative organs and royal courts of appeal. In northern 
France, where royal authority was consolidated earlier than 
in southern France, royal courts of appeal were established 
at the critical period when Roman law was sweeping over 
Europe, just in time to make it unnecessary to receive Ro- 
man law in its entirety. In most parts of the Continent, 
however, new law was needed and there were no legislative 
or judicial organs that could supply it. Accordingly, the law 
books of Justinian were fully received, not only in territories 
where the local customs were largely Roman and where the 
people believed that they were living by Roman law, as was 
generally the case in central and southern Italy and in 
southern France; they were received also in northern Italy, 
where Lombard law prevailed, and in Germany and in the 
Netherlands, where the local customs were even more dis- 
tinctly Teutonic. 

In the popular courts so refined a law as the Roman could 
not well be applied until there were learned advocates to 
state and explain its rules, nor even then could it be satis- 
factorily applied by unlearned judges. If Roman law were 
to be used in the civil courts, these courts must have, what — 
only the church courts had so far possessed, a legally trained 
bar from which learned judges could be drawn. ‘This need 
was first met in Lombardy, where law schools were developed 
in the eleventh century, and in the twelfth century it was 
more fully met in other parts of Italy, notably at Bologna. 
Here provision was made for the detailed study of the law 
books of Justinian, and this study attracted such masses of 
students that it seems to us today as if the supply of Roman 
civil lawyers must have greatly exceeded any conceivable 
demand for their services. To Bologna and to other Italian 
universities came law students by the thousands. ‘They 
came not only from Italy and the French pays de droit écrit, 
but also from Germany and the Netherlands, where the 
Roman law was not yet received, and from other countries 


30 A General View of European Legal History 


where it was not destined to be received. Some of these 
students were or intended to become clergymen, and were 
studying the Roman civil law in order to prepare themselves 
more fully to practice in the ecclesiastical courts; but many, 
apparently the majority, were laymen who did not intend 
to become priests. Why then were so many laymen studying 
a law which they could hardly expect to use in the secular 
courts of their own countries? 

Of those who were consciously fitting themselves for a 
definite career, some indeed intended to teach Roman law in 
their native countries, but a far greater number were proba- 
bly preparing themselves for governmental service. For 
several centuries the emperors, kings and princes of Europe 
had been forced to depend for expert administrative service 
upon the clergy, as the only educated class. After the disso- 
lution of the Frank Empire, frequent and increasingly acute 
conflicts had arisen between the rulers of Europe and the 
ecclesiastical authorities. In these conflicts the secular rul- 
ers could not but doubt whether their ecclesiastical chancel- 
lors and ministers gave them whole-hearted support. The 
intensive study of the Roman civil law produced a new © 
learned class, and emperors, kings and princes were prompt 
to draw into their service men of this class on whose undi- 
vided allegiance they could confidentially rely. That seems 
to be the chief reason why students came in such numbers 
from all parts of western and central Europe to study Roman 
civil law in Italy. Today we should call them students of 
political science. If they failed to secure positions in the 
central or local administration of any kingdom or principal- 
ity, they might at least anticipate employment in some city. 

For the complete reception and practical application of 
the Roman civil law, it was obviously necessary that the local 
courts of the older popular type should be replaced by courts 
of learned judges and that from each local court appeal 
should run to some higher court of the same character. In 
the self-governing cities the substitution of learned judges 
for the unlearned municipal magistrates could be, and was 


A General View of European Legal History 31 


for the most part, effected by the cities themselves; but else- 
where courts of the new type could be established only by 
royal or princely authority, and only by such authority could 
higher courts be established to which appeals should run 
from the city courts as well as from the courts of the open 
country. What legal historians call the development of the 
learned judiciary was, from the political point of view, the 
replacement of the popular courts by official courts. This 
change was made possible by the growing power of the kings 
and princes. At the outset it seems to have encountered lit- 
tle opposition. In many cases the change met a popular de- 
mand. ‘The inability of the unlearned judges to adapt the 
archaic customs of the popular courts to new conditions 
brought these courts into discredit; and in many instances 
complaints of denial of justice and prayers for relief, ad- 
dressed directly to the territorial rulers, gave support, if 
not the first impulse, to the development of the new courts. 

The reception of the Roman law was facilitated by the 
persistence of the Roman imperial tradition, which found 
expression in the theory of ‘‘ continuous empire.” In the 
sense in which the theory was most widely accepted, con- 
tinuous empire meant that all existing political authority — 
was somehow derived from the old Roman empire. The 
roots of this theory have already been indicated. It gained a 
new basis when the Frank kings became Roman emperors, 
and it was further strengthened when the title of Roman 
emperor was connected with the German crown. The Hoh- 
enstaufen emperors in their conflicts with the papacy cited 
Roman law texts against papal decretals. In 1165 Frederic II 
declared that he followed in the footsteps of his predecessors, 
the sacred emperors, especially Constantine, Valentinian 
and Justinian, and that he revered their sacred laws as 
divine oracles. 

These were something more than claims advanced by the 
emperors; the theory of continuous empire was accepted 
even by ecclesiastical writers. An Italian canonist, Hug- 
uccio, wrote about the year 1200: 


32 A General View of European Legal History 


The Roman law binds the Romans and all who are sub- 
ject to the Roman emperor. What of the French and Eng- 
lish and other ultra-montanes? Are these bound by Roman 
law and held to live by it? I answer, certainly; for these 
either are subject or ought to be subject to the Roman em- 
peror; for in the Christian world there is but one emperor, 
although in the different provinces there are different kings 
under him. | 


This extension of the theory was of course rejected by 
the kings of England, of France and of Spain, but it seems 
to have been regarded as a menace to their independence 
that could not safely be ignored. It is recorded that on one 
occasion, when a German king who was also Roman em- 
peror paid a visit to England, he was not permitted to land 
until he had disclaimed political authority in that island. As- 
sertion of independence is also to be found in the fact that 
the kings of England and of Spain were not infrequently 
described as emperors. In these precautions and protests 
we have no rejection of the theory that all European author- 
ity was derived from the Roman Empire. What was asserted 
was that imperial authority had been so divided that the 
_ Roman emperor of the German nation was not the superior 
of the western kings. 

If all medizval kings and independent princes were suc- 
cessors of the Roman emperors, it logically resulted, as 
Huguccio declared, that the laws established by their pred- 
ecessors must everywhere be applicable. We find, in 
fact, that as early as the tenth century jurists of Barcelona 
were describing the special law of their province as municipal 
law and the Roman law as common law. Accordingly it 
appears that not only in the territories of the Holy Roman 
Empire but also in other parts of the Continent, the theory of 
continuous empire was of some value in facilitating the re- 
ception of the Roman law. It has always been found de- 
sirable to discover a legal basis for revolutions. 

In many parts of Europe, in which the law books of Jus- 
tinian were not received as having direct legal authority, 


A General View of European Legal History 33 


the Roman law was either received in its entirety, although 
in a different form, or partially received through the accept- 
ance of many of its principles and rules. In Castile, for ex- 
ample, the Roman law was virtually received by the enact- 
ment in the fourteenth century of the “Law of the Seven 
Parts.” In Aragon the Roman law was not received, either 
directly or indirectly, as general subsidiary law; but, as in 
other parts of Europe, gaps in the law were filled by what 
is today called a “ particular” reception of special Roman 
rules. Such a particular reception took place in northern 
France, where, as a French jurist neatly said, Roman law 
was received non ratione imperii sed imperio rationis. In 
England, the process of partial reception of Roman rules 
had been under way in the common law courts almost from 
the time of Henry II. In the development of a common 
custom of the realm the English royal judges frequently 
filled gaps in the law by adopting Roman rules, usually with- 
out acknowledgment of their source. In the court of equity 
even more Roman law was introduced. In the ecclesiastical 
courts the basis on which the.so-called “‘ private ” canon law 
was developed was, as elsewhere throughout Christendom, 
the Roman civil law; and with the law merchant not a little 
Roman law came into England, as was fully recognized by 
Lord Mansfield. To an even greater extent such a par- 
ticular reception of Roman law took place in Scotland before 
the union of this kingdom with England. 

Throughout Europe, even in such countries as the Scandi- 
navian kingdoms and the forest cantons of Switzerland, 
where Roman law was not received in the middle ages be- 
cause economic conditions did not require new law, there 
was, earlier or later, what legal historians call a “ scientific ”’ 
reception of the Roman law. From the thirteenth century 
on, statements of local and provincial customs were increas- 
ingly presented in an arrangement, and frequently in a ter- 
minology, borrowed from the Roman law. In England it- 
self the first systematic statement of the law in the great work 
of Bracton was based, both in arrangement of topics and in 


34 A General View of European Legal History 


the statement of general principles, on a famous and widely 
circulated Italian handbook of Roman civil law, the 
Summa of Azo. It is for this reason that in those parts 
of the Continent in which the law books of Justinian were 
never received, and even in England at the present time, 
the study of Roman law is regarded as a valuable and even 
necessary part of legal education. 

In this chapter of European legal history we have a re- 
markable fulfillment of an ancient prophecy. Early in the 
fifth century, when German conquerors had swept through 
the Roman Empire from the Danubian provinces to Spain, 
the Gallo-Roman statesman and poet, Claudius Rutilius, ex- 
horted Rome to look forward to the future triumph and per- 
petual influence of her laws. 


Porrige victuras Romana in saecula leges 
Solaque fatales non vereare colus. 


For the interpretation of this fourth great body of Euro- 
pean law and for its adaptation to medizval and modern con- 
ditions there was no central European court, such as ex- 
isted in Rome for the interpretation and development of the 
Roman canon law. But in this case, as in the case of feudal 
law and in that of commercial law, a substantial unity of in- 
terpretation was obtained by imitation. The interpretation 
worked out in the Italian universities from 1100 to 1250, 
digested and made readily available in the so-called “ gloss ” 
of Accursius, was accepted throughout Europe as authori- 
tative; and throughout the middle ages and even in more 
modern times, writers and judges in all parts of the Conti- 
nent were familiar with and frequently cited the writings of ' 
jurists and the decisions of judges in European countries 
other than their own. We have today an exact parallel 
in the interpretation and development of English common 
law and equity, in that decisions rendered in England and in 
the self-governing commonwealths of the British Empire 
are frequently cited in American courts, and American de- 


A General View of European Legal History 35 


cisions in England and in all parts of the British Empire 
that are governed by English law. 

The complete or partial reception of the Roman law in 
the later middle ages not only met immediate and pressing 
needs, but was also, on the whole, of permanent advantage. 
It had, however, for a time at least, some serious disadvan- 
tages. In some matters the law of the ancient Mediterranean 
world was not so well adapted to medieval conditions as 
were the local customs. In theory it was everywhere rec- 
ognized that the Roman law had only subsidiary force, that 
local custom was to govern every decision if any local rule 
could be discovered which fitted the case. The learned 
judges, however, trained in the Roman law and its fervent 
admirers, regarded variant local usages with disfavor. Legal 
writers described these usages as barbarous, asinine, es- 
tablished by men devoid of reason. In the new learned 
courts it became the established rule and practice that a 
plaintiff need not invoke local usage if he could base his 
claim on Roman law. If he could do this, it was for his 
adversary to plead a contrary local rule. In all cases where 
a local rule or usage was invoked, the learned courts re- 
quired proof of its existence and its general recognition. 
When the local rule was unwritten, it was not easy to satisfy 
the learned judges that it was generally recognized and 
should be applied. The result was that in some matters 
an established local usage which was well suited to existing 
conditions was overridden by Roman law. This naturally 
aroused resentment, especially in German-speaking coun- 
tries; and with the completed reception of the Roman law 
there arose a wide-spread reaction against “the foreign 
laws.” 

The hostility to the foreign laws had, however, other 
grounds. In the popular courts, in which the judges, as a 
current phrase ran, decided each case according to es- 
tablished custom and their five sound senses, a litigant had 
little need of counsel. He might indeed find it advisable 
to employ an expert pleader who was familiar with the es- 


36 A General View of European Legal History 


tablished forms of complaint and of answer, but such assist- 
ance was not expensive. With the establishment of learned 
courts, applying a highly refined law, written in a language 
intelligible only to the learned class, the aid of learned coun- 
sel became indispensable, and the fees of such counsel were 
found burdensome. A German saying ran: ‘“ ‘ Now we have 
got them’ said the lawyer to his client, but he meant his 
client’s dollars.” 

There were frequent complaints also of delay in the ad- 
ministration of justice. This was largely due to the intro- 
duction of appeals; but the evil was aggravated by the sys- 
tem of procedure, which was based on that developed in the 
ecclesiastical courts. In these, as has been already noted, 
procedure. was cumbrous and slow. Men accustomed to the 
cheaper administration of justice in the popular courts 
found this delay of justice the more exasperating because 
it meant still larger fees to counsel. For these grievances 
the foreign laws were primarily held responsible, but to a 
large extent responsibility for all the inconveniences which 
followed the acceptance and attended the administration 
of the foreign laws was imputed to the learned lawyers them- 
selves. This, of course, was unjust; but throughout the 
course of legal history we find similar criticisms and pro- 
tests when a stage of social and economic development is 
reached in which law necessarily ceases to be simple be- 
cause life itself has become complicated. I know of but 
one historical period in which no popular criticism appears 
to have been directed against the legal profession, namely 
the Roman republican period, and in that period the jurists 
gave advice gratuitously. | 

A Castilian poem of the fifteenth century complains: 


At the king’s court there are more than sixty judges, audi- 
tors and notaries, sitting in imperial state and drawing end- 
less pay, besides a hundred and ninety doctors; and in forty 
years they have not finished a single case. When a case 
comes to argument the digest is cited, as are also the writings 
of Guittoncino, Bartolus, Baldus, Juan Andrés and Enrique; 


A General View of European Legal History 37 


and when the case has been thoroughly argued, the advocates 
discover a point of error and begin all over again. In the 
land of the Moors one alcalde deals with civil and criminal 
cases, and one long day is enough to render equal-handed 
justice in any case. There there are no Clementinae or other 
decretals, no Azo or Rodbertus, but common sense and the 
good doctrine that shows all men how they are to live 
together. 


In Germany more formal protests began to appear at the 
close of the fifteenth century. In 1497 the Bavarian knight- 
hood complained: ‘‘ Many things are done in contraven- 
tion of established usage, whence arise deceptions, errors 
and confusion; for these professors of the law do not know 
our customs, nor if they knew them would they be willing 
to make any concession to them.” In 1514 the duke of 
Wurttemburg was requested by the Estates to appoint as 
judges in his court “ honest and sensible men from the no- 
bility and the cities and such as are not doctors, that ver- 
dicts may be rendered in accord with established usage and 
that his Highness’s poor subjects may not be unsettled and 
confounded.” Many similar complaints might be cited. In 
the demands advanced in the German peasant insurrection 
of 1525 we read: “‘ No doctors of laws, be they clerks or 
laymen, shall be suffered in any court, in any trial, or in any 
princely or other council; for the law is harder for them to 
unlock than for the layman, nor are they able to find the 
key until both the parties are impoverished and ruined.” 
It is then suggested that these doctors ‘“‘ be employed to read 
and to preach the Holy Gospels instead of ruining folk by 
their delays and evasions.” And at the close of the eight- 
eenth century one of the reasons given for the projected: 
preparation of an Austrian code was “ to protect oppressed 
innocence against the ordinary arts of the advocates.” 

The rule established in the learned courts, that local cus- 
toms must be proved, and the difficulty of proving unwrit- 
ten customs gave a marked stimulus to the presentation of 
local and provincial laws in written form. Such compilations 


38 A General View of European Legal History 


had been made in earlier times, but the thirteenth century 
produced a far greater number. This and the five following 
centuries may be described as the period of particularistic 
codification. Many of the earlier compilations were trea- 
tises, not codes, and were the work of private writers. Of 
these law books the most famous were Eike von Repkow’s 
‘Mirror of the Saxons” and Beaumanoir’s “ Custom of 
Beauvoisis.” Such private compilations were gradually 
replaced by official statements. In France, for example, all 
the local and provincial customs were ultimately put into 
written form by royal commissioners. In some territories, 
notably in the separate Spanish kingdoms, in the Norman 
kingdom of Sicily and in some of the larger German terri- 
tories, codes were enacted which covered an area far wider — 
than that of a French province. It should be noted, how- 
ever, that these codes, like the provincial codes of France, 
had as a rule only subsidiary force. It should be noted also 
that wherever the Roman law had been completely received, 
it retained ultimate subsidiary authority. The Prussian 
code of 1794 represented the first serious attempt, since 
the Visigothic code, to establish for an entire kingdom rules 
overriding variant local and provincial customs, and to de- 
prive the Roman law of subsidiary authority. This code, 
of course, was not a national code, since the kingdom of 
Prussia was then, at least in theory, and afterward became 
in fact, a part of a wider national organization. 

National civil law, as distinguished on the one hand from 
European law and on the other from local and provincial 
law, was first established in the nineteenth century, and 
first of all in France. The demand for a French civil code 
was widely voiced, at the beginning of the revolution of 
1789, in the complaints and demands sent from all parts of 
the kingdom to the Estates General. These complaints 
were largely directed against the existence of different laws 
for different classes. Very general, however, was the com- 
plaint against the diversity of local laws and customs, which 
made Frenchmen living in different villages legally strangers 


A General View of European Legal History 309 


each to the other. These protests were accordingly directed 
in part against the application in France of European laws, 
particularly feudal law and ecclesiastical law, and partly 
against the diversity of local customs. Against the law 
merchant there was no protest. This indeed had been put 
into the form of a French code in the reign of Louis XIV. 

Revolutionary legislation abolished feudalism, clerical 
privileges and ecclesiastical jurisdiction. In 1804 the Code 
Napoleon abolished all the various provincial and local cus- 
toms, deprived the Roman law of its authority, and thus 
established uniform national civil law. 

In all the principal countries of Europe legal conditions 
were much the same as in pre-revolutionary France. From 
the point of view of legal uniformity they were no better 
in Spain, where each of the old kingdoms retained its an- 
cient laws and customs. In Italy and in Germany, when 
these countries obtained national organization, there was a 
similar diversity of laws. In each there were different codes, 
some of them modern, and in Germany there was an ex- 
traordinary variety of ancient local customs. In each of 
the great national states of modern Europe, except in 
Spain, uniform civil law has been established by the enact- 
ment of civil codes. In Spain the attachment of Aragon and 
of some of the smaller provinces to their ancient separate 
law was so strong that in these provinces subsidiary’ force 
only was given to the civil code adopted in 1889. The ex- 
ample of the larger states of the Continent has been followed 
by the smaller. The movement has been European. 

Most of these modern European codes exhibit a strong 
family resemblance. This is largely the result of imitation. 
The Italian civil code is based on that of France, and the 
Spanish civil code on those of France and of Italy. Nearly 
all the codes of the smaller European states are based on the 
French model. The one great national code which is not 
based on the Code Napoleon is the German civil code. This 
has had a marked influence upon the Swiss federal code. 
At present there are but two groups of European civil codes, 


40 A General View of European Legal History 


the Latin and the German-Swiss; and in comparing the codes 
of these two groups we find a substantial accord which far 
outweighs their material and formal differences. All the 
European codes belong to what i is aptly termed the modern 
Roman law group. 


In the preceding review of European legal history, stress 
has been laid on the supra-national character and essential 
unity of the whole movement, because, in the writer’s opin- 
ion, this unity is obscured by the presentation of the move- 
ment in separate national histories. The chief phases of the 
European movement are indeed fully described in the vast 
body of literature dealing with the history of feudal, of 
ecclesiastical and of commercial law, with the continuous 
influence of Roman law through the earlier middle ages, 
and with the reception of the law books of Justinian as sub- 
sidiary European law; but the separate treatment of each 
of these great movements does not create the same impres- 
sion that would be produced by a general history of Euro- 
pean law. In the national legal histories the influence of 
each of these great bodies of European law is of course 
recognized; but the fact that each has its special literature, 
in which its European character is emphasized, almost in- 
evitably leads the national historian to dwell chiefly upon 
the degree of influence which each has exercised upon the 
legal development of his own country, and to insist rather 
upon minor variations than upon fundamental similarities 
in his own as compared with other countries. The national 
point of view leads him also to devote to the local and pro- 
vincial customs of his own country a degree of attention 
that is out of proportion to their intrinsic importance and to 
the degree of influence they have exercised in shaping the 
existing civil law.’ 


2 In the ‘‘ Continental Legal History’ series, published under the aus- 
pices of the Association of American Law Schools, the first volume attempts | 
to give a ‘‘ General Survey ” of continental legal history. The other volumes 
are translations of standard works on the legal history of the more important 
continental states, and on the special topics of commercial law, criminal law 


A General View of European Legal History 41 


The writers of these national histories are of course fa- 
miliar with the special histories of each of the great bodies of 
European law, but the great majority of their readers are 
not. For admission to the bar, candidates are usually ex- 
amined on medizval and modern legal history only as this 
is presented in the legal histories of their respective countries. 
In the existing state of European legal historiography this 
is all that can reasonably be required. The result is to 
create, even in the legal profession, a false impression con- 
cerning the extent to which the existing law of each conti- 
nental country is the product of that country’s special his- 
tory, and therefore an expression of its national life and 
character. 

Efforts to attain a greater international harmony of legal 
rules, to create anything approaching world law, are im- 
peded far less by national interests than by national senti- 
ment. Not only in commercial law, in the narrower sense 
of the term, but also in many fields of general civil law, 
notably in the law of personal property and of contractual 
and quasi-contractual obligations, countries that have 
reached a similar stage of economic development have little 
or no interest in the maintenance of variant rules. In these 
fields, different rules are historical accidents rather than the 
expression of national characteristics. National sentiment, 
however, regards national law as an essential element of the 
national life, second in importance only to a common lan- 
guage. Where a national law is the product of a historical 
development reaching back, as in the case of the English 
common law, through many centuries, instinctive reluctance 
to abandon settled rules for the sake of attaining world law 
is intelligible. The attachment of even a province to its 
peculiar law, when this law has deep roots in the past, is 
and judicial procedure, these topics being treated from the continental point 
of view. In the absence of any general history of continental law, the 
residuary “ General Survey ” is compiled from the nationalistic literature; and 
the failure of this volume to give a clear view of the essential unity and 
continental character of the whole movement strikingly illustrates the inade- 


quacy, for any such purpose, of the material to be found in the legal histories 
of the several European States. 


42 A General View of European Legal History 


equally intelligible, and we have seen that the devotion of 
Aragon and other Spanish provinces to their ancient fueros 
was strong enough to prevent the establishment of common 
national law in Spain. In the other continental states, even 
in Switzerland, where attachment to cantonal law delayed 
for decades the enactment of a federal civil code, provincial 
sentiment has been unable to prevent the establishment of 
common national law. National sentiment, however, will 
prove a more serious impediment to the attainment of greater 
unity of law in Europe; and this sentiment is strengthened 
by the belief, even though this belief be largely an illusion, 
that the different civil codes of the Continent have ancient 
roots in the special history of each country. As Words- 
worth puts it: 
‘“‘ Assent is power; belief the soul of fact.” 


oad 


II 
THE DOMAIN OF POLITICAL SCIENCE* 


THE term “ political science ” is greatly in need of definition. 
Technical terms should have a limited and exact meaning; 
but this particular term is used vaguely, not by the laity 
alone but by professed experts. These speak sometimes of 
a “political science,” at other times of a plurality of “ politi- 
cal sciences.” Again, the sciences which are commonly 
described as “political ” are often designated as “ social”’; 
and besides the various “social sciences”’ there appears to 
be a “social science.” 

A more exact use of these terms is certainly desirable. 
This, it seems to me, is more likely to be obtained by endeav- 
oring to establish the respective domains of the sciences in 
question and their relation to each other, than by laying 
down dogmatic definitions, the practical value of which is 
often overrated. A neat definition is a very attractive thing. 
It seems to offer the conclusion of wisdom in portable form. 
It is, in fact, the condensed result of a great deal of hard 
thinking; but to understand it, to appreciate what it includes 
and what it excludes, the thoughts of the definer must be 
thought over again until the disciple has gained the same out- 
look over the subject as the master — and then he no longer 
needs the definition. 

Social science, in the broadest sense, deals with all the 
relations of man in society; more precisely, with all the re- 
lations that result from man’s social life. It may be ques- 
tioned whether it is proper to speak of a social science. We 
certainly have no general social science in the sense in which 
we have particular social sciences. In politics, in economics, 

1 Reprinted from the Political Science Quarterly, vol. i, no. 1 March 
1886, pp. 1-8. This leading article was published upon the establishment of 


the Political Science Quarterly by Professor Munroe Smith, who was then 
and for many years thereafter editor. 


44 The Domain of Political Science 


in law and in language, we are able to some extent to trace 
phenomena to their causes, to group facts under rules and 
rules under principles. But the laws which underlie man’s 
social life as a whole have not been grasped and formulated. 
Social science or sociology, if we use the term, is therefore 
simply a convenient general expression for a plurality of 
social sciences. But social science is used in another and a 
narrower sense. ‘The various social sciences do not cover 
the entire field of man’s social life. There are portions of 
that field —e.g., movement of population, vice and crime — 
which lie beyond the domain of the older and better-defined 
sciences; in which the preliminary work of exploration has 
only recently been undertaken; and in which little has been 
accomplished beyond the collection of data by statistical ob- 
servations. For lack of a more definite term,” social science 
is used in a restrictive sense to describe these newly-entered 
domains of investigation. - 

Among the social sciences we find some which are desig- 
nated as the political sciences. Political science signifies, 
literally, the science of the state. ‘Taken in this sense, it 
includes the organization and functions of the state, and the 
relation of states one to another. But what are the political 
sciences? Are they subdivisions, or special branches of the 
science of the state? Economic science is obviously re- 
garded as one of the political sciences, for the term “ politi- 
cal economy ” is used more often than ‘economics ” and 
commonly in quite as broad a sense. But economic science 
does not occupy itself simply with the state. It is the science 
of wealth. It deals with the finances of the state, but it 
deals also with the accumulation, exchange and distribution 
of wealth by individuals. But the political sciences may per- 
haps be taken to be those which deal with the relations of — 
man in the state, i.e., with all the relations which result * 


2 For the science of population the Germans, are beginning to use the 
word Demologie. This new science, strictly speaking, lies only in part within 
the circle of the social sciences; in part it reaches out into natural science, 
z.e., biology. 

8 This limitation is obviously necessary. The mere fact that certain rela- 
tions exist in the state does not make them political; otherwise, in the present 
stage of civilization, all social relations would be political. The question is: 
Do the relations exist because of men’s living in and under the state? 


The Domain of Political Science 45 


from man’s political life. But is economic science a purely 
political science even in this sense? Do we not find, for ex- 
ample, private property and barter among people who, like 
Homer’s Cyclops, know no other social organization than 
that of the family? If economics be a political science, 
much more must law be so. Law, like economic science, 
deals with many relations not resulting from man’s political 
life — e.g., property and family relations — but its rules are 
at least formulated by state organs, and enforced by gov- 
ernmental machinery. Nevertheless, law is not commonly 
classified as one of the political sciences. It seems prefera- 
ble, under these circumstances, to recognize but one political 
science — the science of the state. The relations with which 
this science deals may, of course, be subdivided and treated 
separately. We may separate the relations of states one to 
another — the international relations — from the national. 
We may divide the national relations into questions of state 
organization and state action. We may distinguish between 
the various functions of the state. But there is no good rea- 
son for erecting these various groups of questions into dis- 
tinct political sciences. The connection of each with all is 
too intimate. 

In endeavoring to distinguish political science from the so- - 
called political sciences, I have no thought of denying the 
close connection which subsists between political science, as 
here defined, and the sciences of economics and law. On the 
contrary it is a chief object of this article to demonstrate the 
inter-dependence of these sciences. In defining them we 
emphasize the point of view rather than the field of view — 
the side from which social relations are regarded rather than 
the relations themselves. Thence arises an impression 
that the domains of these sciences are more distinct than is 
really the case. 


Leicht bei einander wohnen die Gedanken, 
Doch hart im Raume stossen sich die Sachen. 


Each of the three sciences we are now considering holds a 
large proportion of its territory in common with one or both 


46 The Domain of Political Science 


of the others. Law and politics have common ground in the 
organization and operation of government in the single state. 
Law and economics are both concerned with all commercial 
transactions. The theory of governmental administration 
is largely economic; and state-finance is a part of the ad- 
ministrative system of the state, is based on economic theory, 
and is regulated by law. ‘The relative position of these 
sciences may be indicated by drawing three circles or ellip- 
ses, each of which intersects the other two, with a very con- 
siderable space occupied by all in common. Nor is the 
ground which these three sciences cover, proper to them 
only. All the social relations with which politics, law and 
economics have to do lie within the domain of ethics. Duty, 
loyalty, honesty, charity — these ideas are forces that un- 
derlie and support the state; that give to law its most effec- 
tive sanction; that cross and modify the egoistic struggle for 
gain. | 7 

Politics, law and economics — political, legal and eco- 
nomic science — these two classes of terms have thus far 
been used indiscriminately. But it is obvious that the poli- 
tician and the lawyer are not necessarily political or legal 
scientists, any more than a man who busies himself in devis- 
ing new means of gaining wealth is an economist. Primarily, 
of course, the difference is in the aim. Science aims at the 
discovery of truth. But the methods must be such as are 
adapted to realize this aim. What then are the methods of 
the social sciences? All the various methods employed may 
be grouped under one term — comparison. ‘The single fact 
means nothing to us; we accumulate facts that seem akin; 
we classify and reclassify them, discarding superficial and 
accidental similarities as we discover deeper substantial 
identities. We accumulate and compare facts from our own 
and from foreign countries; we accumulate facts from the 
immediate and more remote past, and compare them with 
each other and with present facts. Statistics, comparative 
legislation, history — these are means and modes of accumu- 
lating facts for comparison. 


* 


The Domain of Political Science 47 


The ancillary relation which these studies bear to the 
social sciences is often lost from view. We speak of an his- 
torical science, of a science of comparative legislation, of 
statistical science —and thus apparently codrdinate these 
studies with the social sciences of politics and economics, law 
and ethics. But they should not be so codrdinated. His- 
tory, for example, is not a social science in the same sense as 
economics, for it does not deal with a definite group of social 
relations. It is a mode of investigating all sorts of social 
relations. The same is true of statistics and comparative 
legislation. 

I have not the slightest intention of denying the existence 
of a science of history, of statistics, or of comparative legis- 
lation. There are methods of accumulating and using facts — 
(?) that are inaccurate and deceptive. The number of 
these methods is as unlimited as the ingenuity of ignorance. 
There are, on the other hand, methods of collecting, testing, 
sifting and using facts that give approximately accurate and 
trustworthy results. These are properly called scientific 
methods. They are limited in number; and the most impor- 
tant are those which we call the sciences of history, of sta- 
tistics, and of comparative legislation. But the relation of 
these sciences to the social sciences is not coordinate, but 
auxiliary. 

Of all these auxiliary sciences, the most important is his- 
tory. All other methods of comparative study may be said 
to operate on a single plane —the plane of the present. 
History gives to the social sciences the third dimension, and 
thus indefinitely increases the range of comparison. But 
it does far more than this. To the application of the historic 
method we owe the discovery that social institutions persist 
and at the same time change from generation to generation 
and from century to century; that these changes, in the case 
of each single institution, are not fitful but steady, and are 
of such a nature that we involuntarily borrow words which 
describe the processes of organic life, and speak of their 
“srowth ” and ‘‘ decay ”; and when we take a further step, 


48 The Domain of Political Science 


and compare the social institutions of the present time, in 
their totality, with those of earlier and still earlier periods 
until tradition vanishes in the ‘infinite azure of the past,” 
we discover a constant tendency from the simple to the com- 
plex, a constantly increasing differentiation:of form and spe- 
cialization of function; so that we borrow another phrase 
from the science of biology, and speak of the “ evolution ” of 
states and law, of art and language. The sociologists have 
borrowed the word from the naturalists, but not the concep- 
tion. Before the naturalists made the word technical, Ger- 
man philologists had demonstrated the evolution of lan- 
guage, and a German jurist had said: Law is not made, it 
grows; it is as much a part and a product of a nation’s life 
as is its speech.* 

We have already seen that the domains of politics, econom- 
ics and law are largely coincident. From that coincidence 
alone would result a close interdependence. ‘This interde- 
pendence is greatly increased by the use of the comparative 
and especially of the historical method. To use statistics 
safely, the sociologist must take into account the entire so- 
cial condition of the state in which the statistics are gathered. 
Political or legal as well as economic differences may make 
the statistical reports of two states upon the same subject 
valueless for comparison. The intelligent use of foreign leg- 
islations by the jurist, the economist, or the student of poli- 
tics, implies not only an acquaintance with the general prin- 
ciples and technical structure of foreign law, but also a 
knowledge of the political and economic conditions of the 
country in and for which each particular law was made. But 
it is in historical investigation that this interdependence of 
the social sciences becomes most sensible; and it is through 
historical investigation that we gain insight into the cause of 
this interdependence. It is rarely possible to stamp an his- 
torical fact as exclusively political, legal, or economic. ‘The 
student will naturally approach it from one of these sides, 
and is in danger of failing to see the others; but a one-sided 


4 Savigny, Beruf unserer Zeit (1815). 


The Domain of Political Science AQ 


view is never a true view. Take, for example, the agrarian 
bill of the younger Gracchus. To the economist, its princi- 
pal interest lies in the attempt to break up the /atifundia, the 
great cattle-ranches, and to reéstablish small agricultural 
holdings. To the lawyer, the chief points of interest are the 
tenure by which the /atifundia were held, and the proposed 
inalienability of the new properties. To the student of poli- 
tics, it is a phase in the struggle between the senatorial oli- 
garchy of Rome and the democracy of the peninsula. But 
to view the fact truly, each of the three should be able to see 
it on all sides. 

If we seek to trace through history the evolution of the 
state, we find each step in its development recorded in the 
evolution of law and explained to a great degree by economic 
changes. The transformation of the nomadic clan into the 
local community and of the tribe into the primitive state is 
accompanied and conditioned by the development of agri- 
culture. The substitution of aristocracy for kingship in the 
ancient world, and the analogous development of feudalism 
in medieval Europe, are results of the development of pri- 
vate property in land. The substitution of monarchy for aris- 
tocracy, and of democracy for monarchy — the cycle through 
which Aristotle already saw the little states of the ancient 
world moving —and the similar substitution, in modern 
Europe, of absolutism for feudalism and of democracy for 
absolutism — these further changes are necessitated by the 
development of commerce and the increasing weight of 
movable wealth. 

If it is the evolution of law upon which our attention is 
primarily bent, we find that in primitive society rules which 
we should to-day call legal are inextricably blended with 
moral precepts and religious dogmas. Properly speaking, 
there is neither religion nor morals nor law in this stage of 
social development, for these distinctions are not yet drawn. 
The only sanction of these undifferentiated rules is religious 
fear and the moral sense of the community. But as the tribe 
becomes territorially fixed and the state takes form, the 


50 The Domain of Political Science 


physical power of the state begins to be applied to compel 
obedience to a certain portion of these traditional rules, and 
law begins to separate itself from religion and ethics. As 
civilization becomes more complex, the state plays an in- 
creasingly important part, and the domain of law widens. 
But every step in its development, as in that of the state, is 
conditioned to a great extent by economic changes. 

Finally, if we take economics as the immediate object of 
investigation, we find that the operation of the social forces 
with which this science primarily concerns itself is constantly 
modified by the development of ethics and law. In the strug- 
gle for existence into which men enter with unequal endow- 
ments, it is at first the physically weaker who goes under, 
and the physically stronger who survives; but the cruder 
forms of violence are gradually tabooed by ethics, and at last 
law interposes its imperative vim fieri veto, ends the reign of 
force, and makes the plane of struggle intellectual. Then 
cunning and fraud take the place of brute strength; but law 
meets fraud with equitable interposition, and develops a 
system of checks that grows more complex and refined as 
the increasing ingenuity of man develops subtler forms of 
iniquity. 


It is a result of the entire preceding discussion that politi- 
cal, economic and legal science are so interdependent that 
the investigation of any one of the three implies the inves- 
tigation of both of the others. Choose which you will, the 
others are necessary auxiliaries. But of the three, the sci- 
ence of the state is assuming more and more the dominant 
position. The principal legal question of the day, in our 
country, is: To what organ or organs of the state shall the 
development of law be entrusted — to the judicial and legis- 
lative, or to the legislative alone? This is the essence of the 
question of codification. Behind this is rising a second ques- 
tion, which Europe has met and answered and which we shall 
soon be called upon to answer: Shall the development of law 
be partly local and partly national, or national only? Both 


The Domain of Political Science 51 


of these questions are political. Again, the burning economic 
questions of the day all turn on the advisability, the extent 
or the method of state interference: between landlord and 
tenant, in Great Britain; between capitalist and laborer, in 
Germany; between corporations and the public, in the 
United States. 

The conception of the state as a mere protective associa- 
tion against external force and internal disorder is anti- 
quated. The state is everywhere exercising other functions 
than the protection of person and property and the enforce- 
ment of contract. Whether the increasing importance of the 
state be deplored or applauded, the fact remains that it is 
rapidly becoming, if it is not already, the central agency of 
social evolution. 


III 
STATE STATUTE AND COMMON LAW * 


CopiFICATION has been a subject of debate in this country 
for about half a century. There has been discussion enough 
one might naturally assume, if not to settle the question, at 
least to illuminate it upon all its sides and to furnish all the 
data for its settlement. Nevertheless, the most important 
side of the question has scarcely been examined. ‘The atten- 
tion of the debaters has been centred upon the direct results 
of codification — upon its immediate advantages or disad- 
vantages. It may be shown, I think, that the direct results 
for good or for evil‘ are much less considerable than the 
friends and opponents of the movement have maintained, 
and that the question of real moment is this: How will codi- 
fication affect the development of our law in the future? 
development of the codifying state? 

1. What will be the effect of codification upon the legal 
development of the codifiying state? 

2. What will be the effect of the general adoption of state 
codes upon the general development of American law? 

About the first of these questions there has been much de- 
bate, although the issue has not always been clearly formu- 
lated. The second question, so far as I know, has not even 
been put. . 

I 


The law of the American colonies, like the rest of their 
civilization, was English; and the development of American 
law, however modified by new conditions and alien grajits, 
has been and is a growth from English roots. The English 
law which the colonists brought with them and by which 
they lived — avowedly, in most cases; actually, where they 


1 Reprinted from the Political Science Quarterly, vol. ii, no. 1, March, 
1887, pp. 105-134; vol. iii, no. 1, March, 1888, pp. 134-164. 


State Statute and Common Law 53 


did not avow it — was case law, 7.e., judge-made law. It had 
been developed by the courts. It could be changed by king 
and people, acting together in Parliament, and such changes 
were made from time to time; but they did not compare in 
number or importance with the changes made by the courts. 
Besides the law-interpreting power — which is always to a 
greater or less extent a law-making power — vested in the 
ordinary courts, the chancellor wielded the law-overriding 
power of the crown, the old Germanic right of the king to 
substitute equity for law; and every student of English legal 
history knows to what an extent the latter power was exer- 
cised. 

The United States emerged from the war of independence 
with this body of English judge-made law as the basis of 
their legal development. As means of legal development 
they had all the English factors: the interpreting power of 
the ordinary courts; the extraordinary powers of the courts 
of equity; and statute, or act of legislature. They had also 
the English theory of the relative power of these three law- 
making organs, according to which equity overrides common 
law, and statute supersedes both. In addition to these, they 
devised a fourth form of law, dominating all the others. The 
people themselves, in state and nation, created written con- 
stitutions. As constitution-making power, the people legis- 
lates directly; and such legislation overrides, of course, all 
ordinary statute. 

In studying the development of our law during the past 
century, we observe, in the first place, that the extraordinary 
powers of equity have counted for relatively little. The cre- 
ative movement of English equity had spent itself long be- 
fore the separation of the colonies. It had left a tolerably 
well-settled body of rules superimposed upon the common 
law, and the courts of equity had come to limit themselves 
to interpreting and applying these rules. In the United 
States, the tendency has been to intrust the enforcement of 
both bodies of law to one set of courts; and we have come 
to use the phrase “‘ common law ”’ as including equity, 7.e., as 


54 State Statute and Common Law 


including all judge-made law. The word will be so used in 
the remainder of this paper. 

All the other law-making factors have continued active 
and productive. The highest courts of the different states 
have continued to modify and develop the common law by 
decisions; the legislatures have issued annual or biennial 
volumes of session laws; and the people, from time to time, 
has revised and modified its state constitutions. But when 
we examine the legal development in our states more closely, 
we see a marked tendency of the superior law-making power 
to encroach upon and narrow the field of the inferior. Our 
state constitutions limit the power of the legislatures. Many 
of their provisions are restrictive in form, prohibiting the 
legislature from doing certain things; all are restrictive in 
fact, since the legislature must legislate in accordance with 
the constitution. And the constitution-making power has by 
no means confined itself to the domain of the organic public 
law; the provisions of the state constitutions, particularly in 
the newer states, touch every branch of the law, public and 
private, and their scope widens with each revision.? In like 
manner, we find the legislatures encroaching upon and nar- 
rowing the power of the courts; not expressly by restrictive 
statutes, but in fact. Whenever a legislature regulates by 
statute a matter previously governed by common law, it di- 
minishes pro tanto the power of the judiciary. This is obvi- 
ously true whether the statute change the rule of common 
law or not. As long as the rule rests upon decided cases, the 
judiciary can in fact change it by re-examination and re- 
interpretation of the cases in point. As soon as the rule be- 
comes statutory, the court is restricted to the interpretation 
of the particular form of words which the legislature has 
seen fit to employ. The same limitation of the judicial power 
may sometimes be accomplished when a new statute is 
passed to meet an entirely new question, if the matter be one 
with which the courts might have dealt. The legislature, in 
such cases, Seizes ground which the courts might have occu- 


2 Stimson, American Statute Law, preface. 


State Statute and Common Law 55 


pied. So whether it simply re-enacts or changes or adds to 
the common law, each legislative act invades and lessens the 
power of the courts. The moment any relation of our social 
life is regulated by statute, the development of the law gov- 
erning that relation is substantially barred to the courts and 
must be obtained from the legislature. 

From this point of view, “ codification’ of the law is 
simply an attempt to do all at once and once for all what ap- 
pears to be going on gradually without codification. For 
codification, in so far as it is opposed and has become a sub- 
ject of debate in the United States, does not mean the orderly 
arrangement of that portion of the law which is already 
statutory, — nobody objects to periodical revision of stat- 
utes, — but the transfer from the courts to the legislature of 
the future development of all our law; the elimination, as 
far as may be, of the judiciary as a factor in the making of 
our law. 

This issue has seldom been squarely presented. American 
lawyers are not in the habit of arguing abstract questions, 
and the question of codification never becomes a burning one 
until the bar of a state is actually confronted with a draft 
code. ‘Then the discussion necessarily turns, to a great ex- 
tent, upon the merits or demerits of the particular code 
which is proposed for adoption.* Of course the general ques- 
tion is also discussed; but the real issue is commonly dark- 
ened by arguments, or assertions rather, of an extremely ab- 
surd kind. The opponents of codification have sinned in this 
respect almost as grossly as its friends. 

The anti-codifiers have maintained again and again that it 
is “ impossible ” to reduce the common law to statutory form. 
If by that they merely mean to say that no human ingenuity 
can construct a series of statutes, or a code, which shall an- 
swer every possible legal question justly and directly, i.e., 


8 This has notably been the case in New York. The so-called “ Field 
code”’ is opposed on the ground that it is unscientific in structure and in- 
accurate as a presentation of existing law. It was vetoed on that ground 
by Governors Robinson and Cornell; and on that ground it was rejected 
by the legislature in 1885 and again in 1886. 


56 State Statute and Common Law 


by the simple application of one or more sections to the case 
in point, without resort to deduction or to inference from 
analogy, —if they merely mean to deny the possibility of 
codification in this sense, no sane person will dispute their 
position. But no sane person at present proposes to make 
such a code.t On the other hand, if they mean to say that 
the common law cannot be crystallized into forms of words 
and set forth in rules, the answer is, that this is not only 
possible, but is in fact precisely what the English and Ameri- 
can courts have been doing ever since they began to decide 
cases. No case was ever decided without affirming or modi- 
fying an old rule or setting up a new one. If at the outset a 
rule is stated too broadly or too narrowly, if its first formu- 
lation is crude and unsatisfactory, it is narrowed or extended 
by subsequent decisions — in other words, it is amended — 
until it becomes satisfactory. But at every stage of its devel- 
opment the common law is just as truly a body of positive 
rules as is any book of statutes. 


+ Bentham contemplated the establishment of such a code. He did not 
think it could be perfected at first essay; but it might gradually be perfected, 
he thought, by a series of additions. The courts were to have no power 
of filling open places; the code should be made complete by statutory 
amendment. See his General View of a Complete Code of Laws, ch. 31 and 
34; Works, Bowring’s ed., vol. III, pp. 205, 206, 209, 210. — The idea was a 
common one in the eighteenth century. ‘‘ New law-books were demanded, 
which, by their completeness, were to give a mechanical certainty to the ad- 
ministration of justice. The judge was to be relieved from the necessity of 
exercising his own judgment and restricted to the literal application ” of the 
provisions of the code. Savigny, Beruf unserer Zeit, 3te Aufl., S. 5.— The 
Prussian Landrecht of 1794 was meant to be a code of this sort. The 
codifier attempted to forecast all possible questions. “ The consequence of 
this was the introduction of numerous casuistic passages, which were based 
on no general principles, and which, therefore, instead of making the law 
clear, gave the best possible basis for doubts.” Die neueren Privatrechts- 
Kodifikationen, S. 366, in Holtzendorff’s Encyklopddie der Rechtswissen- 
schaft, 4te Aufl., 1882. The courts were not to decide doubtful points, 
but to ask for instructions from a legislative commission in Berlin. The 
legislation thus obtained was to be added to the code. One such supple- 
ment was issued, April 11, 1803; after this, the construction of the law 
was left to the courts. Jbid., S. 366-368.— The Prussian experiment has 
never been repeated. The code Napoleon provides, in art. 4: “ The judge 
who shall refuse to render decision under pretext of the silence, the ob- 
scurity, or the insufficiency of the law, is to be prosecuted as guilty of 
denial of justice.” The penalty is fine and suspension (code pénal, art. 
185).— None of the codes adopted or proposed for adoption in the United 
States have attempted to realize the Benthamite ideal. Mr. David Dudley 
Field has expressly repudiated it. See his article on codification in the 
American Law Review, vol. xx, no. I, pp. I, 2. 


State Statute and Common Law 57 


On the other hand, one of the favorite arguments of the 
codifiers is equally baseless. They assert that everybody 
“has a right to know the law ” — which nobody disputes — 
and that codification will make the law intelligible to every- 
body — which is nonsense. For a codifier necessarily does 
one of two things. He either states the existing rules of law 
in the technical language in which they are already clothed, 
or he restates them in other words which are not technical, 
and which “‘ everybody understands.” In the first case it is 
obvious that the layman is little-advantaged. It may be 
easier for him to find the rule, but it, is no easier for him to 
understand it. In the second case, he appears to be better 
off —but is he? Every lawyer knows that the restatement 
of a legal rule in popular phraseology simply makes its ap- 
plication uncertain. He knows that the law is clothed in 
technical phraseology simply because it is necessary to have 
words of which the meaning is absolutely certain. He knows 
that the only difference between a technical phrase and a 
phrase of common speech is that the one has a definite sense 
and the other a variety of possible meanings. But it has 
always been singularly difficult to get this fact through the 
head of the average layman. Every doctor of theology or 
medicine, every scientific man, every artist, every tradesman 
and every mechanic uses in his own science or business tech- 
nical terms which are unintelligible to the outsider. Even 
when the term is explained, it is quite likely that the outsider 
will not understand the explanation, because it involves the 
understanding of other things unknown to him, the knowl- 
edge of which is part of the science or craft in question. 
Now all these people use technical terms for the same reason 
that the lawyer uses them — because they need terms of 
definite meaning. This necessity, felt in the simplest trade, 
is greatest in the sciences. And yet all these people demand 
that the law, the oldest and perhaps the most complex of 
sciences, shall speak the language of the hearth and the 
street. It seems a waste of effort to combat such a demand, 
resting upon such a delusion. But if it be a waste of effort, 


58 State Statute and Common Law 


it is not because the delusion is obvious, but because it is 
imperishable. 3 

Not a few lawgivers have shared it, and have attempted 
to “popularize ” the law. The result has always been the 
same. As soon asa set of new, vague, and “ popular ” terms 
is bundled into the written law, the courts proceed to give 
them, by construction, that definiteness of meaning which 
legal science requires — and which in fact the people them- 
selves demand, for the people demand that law shall be cer- 
tain. That is, a set of new technical terms is constructed.’ 
In the meantime, not even the lawyer knows what the writ- 
ten law means; and the layman is worse off than before, be- 
cause he thinks he knows what it means. He is not to 
blame; he has been told, by those who ought to know better, 
that the law can be made perfectly intelligible to him. He 
therefore attempts to act as his own Jawyer — with the pro- 
verbial result. Of course he is made no wiser by the event. 
He simply abuses the “ pettifogger ” on the other side, who by 
captious construction has wrested the statute from its true 
meaning, and the judges who have decided inequitably on 
“technical” grounds. He will not recognize that the law is 
a science, and that a science cannot be mastered without 
study. 

Much less can he be brought to understand that the law is 
simplified in proportion as it becomes more scientific, and 
that there is no other way given among men by which it can 
really be simplified. The relations of man to man in civilized 
society are not few or simple, but infinitely varied and com- 
plex; and if the legislator attempts to set up positive rules 
directly regulating every possible relation, there can be no 
limit to the number of the rules. Legal science analyzes and 
classifies these relations, and finds general rules to govern 
the relations which it has formed. The further this process 
is carried, the more simple the law becomes. The jurist who 
finds a rule burdened with a number of arbitrary exceptions 


5 So in California. See J. N. Pomeroy, The Civil Code in California, 
Pp. 7, 17, 18 et passim. 


State Statute and Common Law 59 


and sets in its place a rule that includes the exceptions, or 
who brings a number of apparently isolated rules under a 
single principle of which they are henceforth corollaries, — 
he it is who simplifies the law. He does not make it any more 
intelligible to the layman, but he makes it easier for the ad- 
vocate and the judge to master and apply it. 

There is, then, nothing in the nature of the rules of com- 
mon law which prevents their being enacted as statutes; and 
there is nothing in such enactment which makes the rules 
simpler or more intelligible. The only direct result which 
can be accomplished by codification is to make the rules more 
accessible. Upon this point the advocates of codification 
lay great stress. The common law, they say, is scattered 
through an immense number of cases. Reports of decisions 
have been accumulating for centuries and already fill thou- 
sands of volumes. It is in this chaos of cases that we must 
search for the rules of our law. The number of cases cited 
in briefs and decisions is appalling. Why should we not col- 
lect the rules of the law in a code? 

The argument seems a strong one. The evils deplored are 
undeniable, particularly the multiplication of citations. But 
are these evils wholly due to the nature of case law? Would 
they be wholly removed by collecting the rules of the com- 
mon law inacode? Is it true that the lawyer and the judge 
have to search through hundreds of cases to find the rule 
which they need, or do they search for guidance in the appli- 
cation of the rule to the concrete case before them? I do not 
believe there are two answers to these questions. Now if 
the multiplication of citations is due to the attempt to find 
guidance in the application of the rule, — to find, if possible, 
a case running “ on all fours ”’ with the case before the court, 
— what will it avail us that the rules themselves are in a 
code? They will still be interpreted and applied in the light 
of old and new cases, until our adherence to precedent be- 
comes less slavish, and our lawyers acquire more of that 
independence in juristic thinking which characterizes the 
bench and the bar of France and Germany. Nothing but a 


60 State Statute and Common Law 


complete reform in our legal science will give them that inde- 
pendence; a code will not do it. | 

It may be admitted, then, that codification will make the 
rules of the law somewhat more accessible; but the greatest 
difficulty, that of their application, is not lessened. This dis- 
tinction is extremely important. It greatly lessens the force 
of another argument which constantly appears in the discus- 
sion of the code question, and upon which the friends of 
codification lay great stress. They say that the common law 
is not only inaccessible but uncertain; that it is not only 
difficult to find the law in the constantly increasing mass of 
cases, but that careful exploration discloses important con- 
tradictions and conflicts in the law. Here again it will be 
found, in almost every instance, that the conflict of authori- 
ties is in reference to the application of a rule which is itself 
undisputed. How will this evil be abated by putting these 
well-settled rules into a code? Where the conflict of authori- 
ties is serious, it doubtless indicates that there is something 
wrong about the rule — that it is ill formulated. What will 
it profit us, if that is the case, to have the ill formulated 
rule made statutory? We shall be worse off than before, by 
as much as it is harder to get an act of legislature than a de- 
cision of the highest court. —I exclude the hypothesis that 
the codifier is to find that happier formulation which the 
courts have been vainly striving to discover, because, in the 
first place, the advocates of codification themselves insist 
that a code shall simply enact the existing rules, not change 
them; and because, secondly, it is not to be assumed that 
we shall be able to get our codes made by men possessed 
of more than the average wisdom of the wise men of their 
own day. 

That the uncertainty of the law lies almost entirely in the 
application of its rules is a truth that would soon come home 
to us if our law were wholly statutory. In the case law 
which has grown up about the codes of France and Ger- 
many, there are quite as serious contradictions and uncer- 
tainties as in the case law of any state in our Union. He 


State Statute and Common Law 61 


who would satisfy himself that this is true of French law 
need not struggle through the voluminous Jurisprudence 
Générale of Dalloz; any standard handbook of French civil 
law will answer the purpose. In fact, we need not go so 
far afield for our evidence. We have been living under a 
constitutional code for a century. It was drafted by able 
men, wise in statecraft and learned in the law. They sen- 
sibly used, as far as possible, words and phrases whose 
meaning had been settled by centuries of constitutional 
conflict and judicial interpretation. Has there been no un- 
certainty in the construction of our Federal constitution? 
Is there no uncertainty to-day? 

Unfortunately we have here again to deal with a delu- 
sion that seems indestructible. Neither reason nor experi- 
ence seems to shake it. It is as old as the XII Tables and 
as new as the proposed civil code of New York. 

The points thus far made may be summarized as fol- 
lows: Codification of the common law is perfectly feasible 
if too much is not attempted. It is not possible to make a 
code that will settle everything, that will wholly free the 
courts from the duty and deprive them of the power of in- 
terpreting and applying the law; but it is quite practicable 
to make a code that shall contain the positive rules which ~ 
now rest upon decisions. The immediate results of such 
codification will not be very great. The law will be made 
somewhat more accessible; but it will not be made any more 
intelligible, nor much more certain; nor will the practice of 
citing cases be abandoned. But the ultimate results may 
be quite serious. As soon as the rules that now rest upon 
decisions become statutory, they are withdrawn from -the 
control of the courts. The judges retain a certain power 
of construction, but have no longer the power of change. 
Judicial legislation comes to an end, and the development 
of the law passes wholly into the hands of the legislatures. 
Is this a thing to be desired? ‘The question, as was said 
at the outset, must be divided: (1) Is such a change in 
the interest of the people primarily affected, the people 


62 State Statute and Common Law 


of the codifying state? (2) Will it be better for the whole 
people, the people of the United States, that the law now 
made by the judges be henceforth made by the legislatures 
of the different states? 

Neither of these questions can be intelligently discussed 
until we know what part of the law the change will affect — 
what part of the law, if any, has generally escaped enact- 
ment and still rests upon cases. And the second question 
cannot be satisfactorily answered until we know how far 
the state legislatures are modifying and adding to the gen- 
eral or common law, and how far their innovations are pro- 
ducing divergences and conflicts of law. Until these pre- 
liminary questions of fact are answered, the discussion has 
no solid footing; it is in the air. But no one can answer 
these questions who has not made minute study and care- 
ful comparison of the statute law of all our States. It is 
fortunate for my present purpose that I have been able to 
obtain an answer which rests upon and derives authority 
from such a study of our state laws. 


Te 


In all our states, it appears, there has been or is now in 
progress a gradual invasion of common law by statute, 
and consequently a gradual transfer of the law-making 
power from the courts to the legislatures; but unless codi- 
fication is attempted, this movement stops short of the goal 
toward which it is apparently tending. A considerable part 
of the common law is cast in statutory form,.a considerable 
part of their law-making power is taken from the judges, 
—and then every one seems to be Satisfied, and nothing 
more is done until the code question arises. Mr. Stimson 
tells us that in the older states the gradual encroachment 
of statute upon common law ceased half a century ago, 
and that it is only in the younger states that it is still going 
on. This fact is extremely interesting and suggestive. Codi- 

6 Part II of the article on State Statute and Common Law as originally 


published in Political Science Quarterly, vol. ii, pp. 115-118, was by 
Mr. Frederic J. Stimson and is not here reproduced. 


State Statute and Common Law 63 


fication is demanded because of general evils alleged to be 
inherent in the nature of case law and general advantages 
that are to flow from the reduction of the whole law to 
statute. It is a doctrinaire demand. Our ordinary statutes 
are not made for doctrinaires. They are made to redress 
concrete evils and to satisfy concrete wants. If now the 
legislatures of the older states, during the past fifty years, 
have found no concrete evils to remedy and no concrete 
wants that lack satisfaction in the body of the common 
law — what is the inference as to the existence of the al- 
leged general evils? 

But how are we to account for the fact of encroachment 
followed by the cessation of encroachment; that is, how 
are we to account for both phenomena? 

Judicial legislation is often assailed upon the ground that 
it is “ undemocratic.” It is said to be contrary to the genius 
of popular government that judges should make the law. 
The law, it is argued, is meant to realize the interests of 
the people, and the people is the best judge of its own in- 
terests. The law should, therefore, be the expression of the 
popular will; and the more directly the people is repre- 
sented in legislation, the more completely does its will find 
expression. Whether this reasoning is sound or not, it can- 
not be doubted that the great majority of the American 
people thinks it sound. We have here a leading article in 
the orthodox democratic faith, based upon a deep-rooted 
popular instinct. And we have here, I think, the explana- 
tion of several phenomena in our legal history. The de- 
sire of the people to realize its will as directly as possible, 
explains the unpopularity of an appointed judiciary holding 
office for life. Such judges are too little dependent upon the 
people; accordingly, the people makes the office elective and 
limits its tenure. Even then the longer term and the tra- 
ditions of the judicial office make the judges far more inde- 
pendent than the representatives who are sent annually or 
biennially to the capital. It is accordingly quite in harmony 
with the democratic idea that the legislature should despoil 


64 State Statute and Common Law 


the judiciary of its law-making power. But there is still a 
more direct method by which the popular will can find ex- 
pression. As constitution-making power the sovereign peo- 
ple declares its desires directly. That it has only to say 
yes or no to propositions framed by representatives or dele- 
gates does not seem to lessen the glad sense of power wielded 
directly. It is, therefore, quite in harmony with the demo- 
cratic idea that the constitution-making power is encroach- 
ing more and more upon the legislatures. A similar phenom- 
enon is observable in Switzerland, where the referendum, or 
direct appeal to popular vote, is constantly becoming more 
frequent ‘— But if all this is true, if it is the democratic 
instinct which causes all these changes, including the en- 
croachment of the legislatures upon the powers of the judi- 
ciary, why is the movement not carried through to its legiti- 
mate conclusion? How shall we account for the fact that 
in our oldest states the legislatures steadily widen the bounds 
of their activity for half a century, and then for the next 
fifty years leave the judiciary undisturbed within its nar- 
rowed domain? By what securer title do the courts retain 
this remnant of their former power? How is their continued 
and undisturbed exercise of the law-making power to be 
reconciled with the imperious desire of democracy to form- 
ulate its policy either by elected representatives or by plébi- 
scite? 

Another ground upon which judicial legislation is often 
assailed is its cumbrousness, slowness, and alleged general 
ineffectiveness. These accusations all touch the method; 
and it cannot be denied that the method invites criticism. 
In view of the history of our common law, it is an exag- 
geration to pronounce the method ineffective; but it cannot 
be denied that it is cumbrous and slow. Judicial legislation 
is hampered by the fiction that the courts do not make law, 
but only find it. Nobody really believés in the fiction, but 
few judges have been bold enough to defy it openly. Ac- 


7 De Laveleye, The Recent Progress of Democracy in Switzerland, 
The Nineteenth Century, August, 1885. 


State Statute and Common Law 65 


cordingly, when new law is needed, the courts are obliged 
to “find ” it, and to find it in old cases. This can commonly 
be done by re-examination and re-interpretation, or, at the 
worst, by “ distinction.”” By a combination of these means, 
it is even possible to abrogate an old rule and to set a new 
one in its place. When the old rule is sufficiently worm- 
holed with “ distinctions,” a very slight re-examination will 
reduce it to dust, and a re-interpretation of the “ distinguish- 
ing’ cases will produce the rule that is desired. But all 
this takes time; and the process, scarcely intelligible to 
the layman, arouses his discontent. If it were intelligible 
to him, its apparent absurdity might arouse other and 
stronger emotions. — Here again we have grounds that 
seem sufficient to explain the gradual transfer of legisla- 
tive power from the courts to the assemblies; but here 
again we are confronted with the question: Why does the 
movement stop uncompleted? Why is it arrested precisely 
during the half-century which has witnessed the greatest 
changes in our social and economic life? Are there por- 
tions of the law in which the slow and cautious legislation 
of the courts is preferable to the apparently more effective 
operation of the statute; and, in the gradual adjustment 
of boundaries between our law-making powers, have we 
unconsciously drawn a logically defensible line of demarca- 
tion? 

I believe this to be the case. I think there is an inherent 
difference between the law of which the people and its 
representatives have assumed control, and the law which 
has been left in the hands of the courts. If this can be 
demonstrated, if we have reached an adjustment —or, to 
use Mr. Stimson’s word, an equilibrium — which is capable 
of scientific interpretation, the fact is one of no little weight; 
for it shows that the adjustment is not accidental. 

The division which has unconsciously been established, 
in the older states where no civil codes have been adopted, 
corresponds very closely to a distinction drawn by the 
Roman jurists. They clothed the distinction in words 


66 State Statute and Common Law 


which have come to-day to bear a different meaning, v7z:, 
public and private law. They defined public law as that 
portion of the law ‘“ which looks to the common weal ” ; 
private law as that portion ‘‘ which looks to the advantage 
of individuals.” * This distinction includes in the domain 
of public law much that we call private law; it includes 
all those rules governing relations between individuals, of 
which the purpose is not, primarily, to guard the interests 
of the persons directly affected, but the interests of the 
public. But in whatever words we clothe the distinction, 
it is a real one. It is doubtless true, on the one hand, that 
all rules of law are intended ultimately to subserve the in- 
terests and secure the welfare of individuals; if not of every 
individual at least of the majority. It is equally true, on 
the other hand,— and it is, in fact, but another form of 
the same statement, — that all law is ultimately intended 
to secure the welfare of the entire community; that it all 
rests upon social interests. But the general social interest 
is realized in part by imposing positive restrictions upon 
the activity of the individual, — for example, by punish- 
ing him for his acts, and in part by giving play to the 
egoistic impulse and securing to the individual the fruits 
of his activity. We therefore find that, in fact, a portion 
of our law is primarily intended to. realize the social interest 

‘public policy,” and that another portion is primarily 
meant to secure the advantage of individuals. 

If now we attempt to separate the different portions of 
our law by the test above indicated, we shall doubtless agree 
that political or constitutional law, criminal law and pro- 

8. Lie est 2, 1s. ae ae 

® Hence the rule: “ Public law is not set aside by pacts of individuals,” 


which implies that private law may thus be set aside. Digest, 2, 14, 38; 50, 
17, 45, 8 I. Cf. II, 7, 20, pr.; 20, 7) 5) 8 73 275 8, I, § 9; 35> 2, 15, 8 TI; 
38,01, 2205 bos rule would be unintelligible if their conception, of private 
law had been as broad as ours. The medieval jurists had somewhat the same 
distinction in mind when they divided law into jus imperativum and jus dis- 
positivum; a distinction which modern jurists retain, and which the Germans 
express in the terms zwingendes and nachgiebiges Recht. But the old Roman 
distinction comes out most clearly, to-day, in the doctrine of the conflict of 
laws, when we say that foreign law will not be applied in derogation of a lex 
fort which rests upon “ public policy.” 


State Statute and Common Law 67 


cedure, lie clearly on the one side of the dividing line, and 
a great part of our private law on the other. Civil pro- 
cedure occupies an intermediate position; it is chiefly in- 
tended to realize and enforce the legalized interests or 
“rights” of individuals, but the organization of the courts 
and the rules of evidence and of appeal are mainly deter- 
mined by the general or social interest. When we examine 
more closely the body of the private law, we shall at once 
recognize that the social interest is extremely direct and 
strong in the matters of marriage and divorce, and the 
property relations of husband and wife; in respect to the 
devolution of property by succession, especially ab intestato; 
and in respect to the whole law of immovable property. 
This leaves upon the other side of the line the law of torts,?° 
and the law of personal property and of contract; and here 
it will hardly be questioned that the social interest is best 
realized by giving freest play to individual activity. 

How has the law actually been divided between our three 
law-making factors? The political law stands in our con- 
stitutions; but not the political law only. There are numer- 
ous provisions in these instruments touching other parts 
of the law. All of these express the strongest and most 
direct public interests. ‘That is the reason they are put 
into the constitutions: the public interest at stake is 
So strong and direct, that the people desire not merely to 
bind the courts, but also to tie the hands of the legislatures. 
The criminal law, Mr. Stimson tells us, has become mainly 
statutory. The legislatures have also made extensive in- 
roads upon the law of the family, of inheritance, and of real 
property. Within these general divisions of the law, the 
careful reader of Mr. Stimson’s statements will see that 
the legislatures have regularly possessed themselves of pre- 
cisely those matters in which the social interest is greatest. 
The law of torts, of personal property, and of contract has 

10 The law of torts is closely akin to criminal law as regards the mat- 
ters with which it deals; but it is separated from criminal law by the pre- 


cise distinction now in question—the distinction of the private or indi- 
vidual from the public or social point of view. 


68 State Statute and Common Law 


been comparatively little touched by statute. This domain 
is therefore left to the courts.** The constitutional provi- 
sions which touch upon the law of contracts are general in 
their character, not regulative of detail. They are, in effect, 
negative provisions. ‘They are intended to guarantee the 
freedom of the individual against encroachment. The legis- 
latures are not to be permitted to interfere with the indi- 
vidual in this domain, because the public interest that might 
demand interference is deemed less weighty than the higher 
interest that demands freedom. 

One of the questions raised in the preceding pages has 
already found its answer. The desire of the sovereign power 
in the state to realize its policy with greatest possible direct- 
ness —a desire which has led the American people as con- 
stitution-making power to encroach upon the legislatures, 
and which has impelled the legislatures to invade and nar- 
row the domain of judicial legislation — this desire has not 
resulted in the complete withdrawal of our private law from 
the control of the courts, because here the dominant inter- 
est is that of the individual, and the chief interest of society 
is to make sure that his activity shall have free play.” 


11 Mr. Stimson tells us that the law of notes, bills, and negotiable paper 
has beén largely enacted; and that the law of interest and usury has been 
subject not merely to much enactment but to much change. There has also 
been much statutory innovation in the law of choses in action. In the last 
case (choses in action), the aim of the statutes has been not to restrict but 
to enlarge the domain of individual freedom, by creating new actions and 
by making actions assignable. In the law of interest and usury, the statu- 
tory restrictions have been dictated by a strong — although perhaps a mis- 
taken — idea of public policy. The enactment of the law of notes, bills, etc., 
rests, I think, upon a different ground, which will be explained later. 

12 The result of the foregoing discussion — viz., that public law (in 
the Roman sense) must needs be developed by statute, while private law 
(again in the Roman sense) need not be so developed — was really reached 
inductively, in the way indicated in the preceding pages. Taking the data 
furnished by Mr. Stimson, I set myself to see whether any intelligible line 
of demarcation had been drawn, in our oldest states, between statute and 
common law. When I found such a line, it did. not escape me that very 
much the same division had been established in the Roman empire between 
the imperial leges and the body of case law, the jus,—a division not 
obliterated by Justinian, but preserved in the digest and codex. Nor did 
it escape me that Savigny, in his “ Vocation of our Time,” drew the same 
line between the field of statute law and that of jurisprudence. Savigny, 
indeed, employed a different nomenclature to describe these two portions 
of the law; calling that which expresses the social or public interest the 


State Statute and Common Law 69 


A second question remains to be answered; viz., the ques- 
tion whether, in this domain of social life, the making of law 
by decisions offers any advantages over the making of law 
by statute. In this domain the social interest, as I have 
said, demands the freest possible play of individual activity; 
1.e., the freest play compatible with equally free play for 
all others. There must be free play, but there must also 
be fair play. The problem is to determine what is and 
what is not fair play; 7.e., to establish the rules of the game. 
And the question now under consideration is: Shall these 
rules be made by the umpires, — the judges, —or by the 
legislatures? 

At bottom, it is the sense of justice, i.e., the ethical feel- 
ing, of the people and the time which really decides what 
is and what is not fair play. The rules, if they are rightly 
drawn, simply express this feeling. But to draw them 
rightly is not an easy matter. There are many relations 
of daily life in which every layman feels the principles of 
justice more accurately than the most skilful jurist can 
express them. In some cases the difficulty seems insur- 
mountable, and the attempt is practically abandoned. 
Every legal system, for example, sets up rules which deter- 
mine the consequences of fraud and negligence; but no 
court or lawgiver has ever succeeded in fixing a definite 
standard of honesty or due care. In a number of the most 
common and most important contractual relations, the 
Roman pretor simply directed the judex, or referee, to 


*‘ political element” of the law, and the other portion, for reasons which 


will presently be indicated, the ‘“‘scientific element” ; but he had the same 
distinction in mind. I was not aware, however, until after the preceding 
pages had been written, that Mr. James C. Carter, of the New York bar, 
had not only insisted upon this distinction in our own law, but had em- 
ployed the same terms, “‘ public” and “ private’ law, to describe it. See his 
admirable essay, The Proposed Codification of our Common Law, New 
York, 1884. The substantial identity of his conclusions and mine has natur- 
ally strengthened my belief in the correctness of my induction. A dis- 
tinction which has commended itself alike to Roman jurists of the third 
century and to German and American jurists of the nineteenth, is probably 
a valid one; and a distinction which has established itself, by a natural 
and unconscious adjustment, in both Roman and English law,—the only 
legal systems which have passed through a normal and complete evolution, 
—jis surely a valuable one. 


70 State Statute and Common Law 


award what was due ex fide bond, i.e., according to his sense 
of fair play; and the most elaborate codes of modern 
Europe have not gone much further.1* The Roman stand- 
ard of ordinary diligence was diligentia boni patris familie, 
the carefulness of a substantial citizen; and the phrase has 
come down verbatim into the code Napoleon. 

In a second and the most numerous class of questions, 
the difficulty is not insuperable; but the task is still far 
from light. As I have already urged, the relations of social 
and especially of commercial intercourse are endlessly 
varied in their details, —it is the very freedom of motion 
granted the individual in this domain that makes them so, 
— and it is impossible to lay down rules that will directly 
cover every special question. Only general rules can be 
posited; and the formulation of such rules is eminently 
the work of juristic science:* I have not now in mind the 
science of the study and the lecture room. This kind of 
science has done good work in discovering the general prin- 
ciples upon which the rules of positive law rest, in showing 
their organic interdependence, and in throwing the whole 
mass of rules into systematic form; but it is not this clois- 
tered science that discovers and formulates the rules them- 
selves. This is done by the science that is in constant con- 
tact with the daily life of the street and the market. It 
would perhaps be more accurate to call this the art rather 
than the science of law.*® The masters of this art have al- 
ways been, and always will be, the men who pass their lives 
in applying the law, 7.e., the bench and the bar. It was 
this class that worked out the rules of private law in Rome, 
and it is this class that has made the English common law. 
It is customary to emphasize a distinction of method in 
the development of the two systems, to point out that in 


18 The proposed civil code of New York has not gone much further. 
In section 987 an attempt is made, in sub-sections 1-4, to enumerate the 
possible forms of fraud, but sub-section 5 confesses failure by adding: 
“Any other act fitted to deceive.” And section 989 declares: “ Actual 
fraud is always a question of fact.” 

14 Tt is for this reason that Savigny called this portion of the law the 
“ scientific element.” 15 So Jhering, Geist des romischen Rechts. 


State Statute and Common Law ise 


Rome the jurists made the law by opinions, and in our sys- 
tem the judges make it by decisions; but it should be re- 
membered that the opinions of the Roman jurists on points 
of law were in effect decisions. In both systems the law is 
made by the same class, the legal profession; and in both 
systems it is made in the same way, by the decision of con- 
crete cases. 

It is universally conceded that the Roman jurists were 
masters in the art we are considering, — the art of finding 
rules to govern the manifold transactions and relations of 
individuals, — and yet, as long as the Roman jurisprudence 
was at its best, the work was never completed. Like our 
own judges, the Roman jurists found it practically impos- 
sible to give their rules final form. New cases were con- 
stantly arising that brought out new sides of familiar rela- 
tions, and necessitated the revision of the rules. The Roman 
jurists, like the English courts, never had anything but 
“working ” rules, subject to continual modification. 

The difficulty which they experienced and which we ex- 
perience — the difficulty, or rather the impossibility, of giv- 
ing final form to the rules of private law — does not lie 
wholly in the complexity of the relations of private life. It 
is largely due to the fact that these relations, like all things 
human, are in constant flux and change, and that the law 
must change with the relations it governs. Whether the 
law be statute or case law, it must incessantly be amended. 
If it be statutory, it can be amended only by enactment ; 
if it be case law, it may be amended by decision. When a 
case arises which shows that an existing rule of common 
law was originally ill formulated, or has ceased to express 
the existing sense of justice, it is in the power of the courts 
to amend the rule. They can often do this by re-examin- 
ing the old cases and showing that the spirit of previous 
decisions justifies the amendment; that their predecessors 
would have phrased the rule differently if they could have 
foreseen the concrete case now presented. If they cannot 
amend the law in this way, they can do it by “ distinction.” 


72 State Statute and Common Law 


But, say the advocates of statutory legislation, you are 
wronging the man who has acted in accordance with the 
rule laid down in the previous decisions. You are subject- 
ing him to loss by retro-active legislation. The latter state- 
ment is perfectly true; the man is subjected to loss by 
retro-active legislation. But is he really wronged, and does 
he really deserve sympathy? In the case supposed, the 
court modifies the rule because the application of the old 
rule will work manifest injustice to the other party. Does 
not the man who invokes the old rule know this? Is he not 
trying to obtain an unjust advantage by means of the law? *° 
Even if this be not the case, it may be a less evil occasion- 
ally to injure one man by retro-active legislation than to 
wrong a series of men by upholding an inequitable rule. If 
the former evil attaches itself to judicial legislation, the 
latter evil is inherent in statutory legislation. How long 
must an inequitable statute work injustice, and how many 
people must be injured by its operation, before the demand 
for change becomes strong enough to set the legislature in 
motion and secure the necessary amendment? 

This, I think, is the chief advantage of judicial legislation, 
viz., ease of amendment. Ease of amendment is desirable 
in a great part of the private law because constant amend- 
ment is necessary. Constant amendment is necessary, first, 
because of the difficulty of formulating satisfactory rules 
for the endlessly varied relations of our social life, and 

16 Every system of jurisprudence must see to it that no one is per- 
mitted to do fraud by means of the law —“ Ne cui dolus suus per occa- 
sionem juris civilis contra naturalem equitatem prosit.” Digest, 44, 4, I, 
§ 1. This end is largely secured in our law by the “equitable powers ” 
of the courts, as it was in Roman law by the similar powers of the pretor. 
But the power of our courts to amend the rules of ordinary common law 
works in the same direction. Mr. Carter puts the matter admirably: “ The 
unwritten law, . . . in dealing with any novel conditions of fact which the 
variety of human affairs present, can address itself ... . to the simple of- 
fice of applying the standard of justice to the particular case. All men 
count and rely upon this. They engage in their transactions without the 
aid of a professional expert, without knowing or caring to inquire what 
the rules of law may be, with no other guide than honest intention and 
ordinary prudence; but in the full confidence that the rules of law which 
govern their transactions, should they ever be challenged, would be the 


simple dictates of justice and common sense intelligently ascertained and 
applied.” The Proposed Codification of our Common Law, p. 37. 


State Statute and Common Law 73 


secondly, because these relations are constantly changing. 
And it should be noted that when such a change occurs and 
a really new rule is required, the advantage of judicial (and, 
conversely, the disadvantage of statutory) legislation is 
greatly augmented. If it is hard to find the proper form for 
any rule of private law, it is especially hard to find it in 
the case of a new rule designed to meet novel conditions. 
A series of attempts will in any case be necessary before the 
desired result is obtained; before a rule is found broad 
enough to include all the cases that should be included, and 
narrow enough to exclude all those that should be excluded. 
If this series of experiments is judicial, the community will 
be forced to endure a period of legal uncertainty. If the 
experiments are statutory, the number of changes will not - 
be less, the period of experiment will be much longer, and 
during this period the community will be subjected to a 
reign of positively inequitable law. 

The advantage here ascribed to judicial legislation has 
always been recognized and emphasized by the opponents 
of codification, but they have chosen unfortunate terms to 
express it; unfortunate because ambiguous. They have 
praised the “flexibility ”’ or “elasticity” of the common 
law. The debate has then turned on the question whether 
flexibility or elasticity in law is a thing to be desired; and 
this debate has done much to befog the public mind. 

When we say that law is flexible or elastic, we may mean 
either of two things: 

We may mean that its rules are so general that the courts 
have wide discretion in applying them; or, 

We may mean that the rules themselves are easily modi- 
fied, or amended. 

Elasticity in the first of these senses is not a peculiar at- 
tribute of case law as such. It is a peculiar attribute of 
private law as such, because of the extreme difficulty of 
formulating any but general rules in this domain. It is 
mediately and indirectly an attribute of our case law, the 
common law, because our common law is practically re- 


74 State Statute and Common Law 


stricted to the field of private law, and precisely to that part 
of the field of private law where the formulation of rules 
is most difficult. The result of this distinction is obvious. 
The enactment of these rules will not lessen their elasticity. 
The courts will have quite as free hand in applying them as 
before. 

Elasticity or flexibility in the second sense, 7.e., ease of 
amendment, zs a peculiar attribute of case law. This sort 
of flexibility is destroyed by enactment; and it is only in 
this sense that codification will make the private law less 
flexible. 

The whole debate in reference to the advantages or disad- 
vantages of elastic law has been vitiated by the failure to 
draw this distinction. And the issue has been further ob- 
scured by removing the discussion from its proper field, 
the field actually occupied by case law, and arguing the 
question, abstractly and at large: Is elasticity of law in 
general a desirable thing? It has been extremely easy to 
answer this question in the negative. It is not at all desira- 
ble that all parts of our law should be elastic. An elastic 
criminal law — elastic in either sense of the word — would 
be highly objectionable. Rules of criminal law formulated 
in so general a way as to leave great discretion to the courts 
would be extremely abhorrent to our sense of justice; and 
a system of criminal law subjected to constant modification 
and amendment would be hardly less so. In general, all 
rules based upon and intended to enforce “ public policy ” 
must be phrased with the greatest possible definiteness. 
construed with the greatest strictness, and changed only for 
great and weighty cause. 

Even in the domain of private law par excellence, in the 
law which looks out for the interests of individuals, there are 
matters which can be and must be definitely and specifically 
regulated. An elastic law of prescription or a flexible law of 
bills and notes would subserve nobody’s interests. These 
and all cognate cases resemble the law of the road; there may 
be no particular reason why we should keep to the right hand 


State Statute and Common Law 75 


rather than the left, but there is an absolute need of agree- 
ment. So it is comparatively immaterial how long the period 
of prescription shall be, or what shall be the form of a valid 
bill of exchange; but a fixed period is indispensable in the 
one case, and a fixed form in the other. And such rules, once 
settled, should not be lightly changed, because of the confu- 
sion that will ensue. 

But all this discussion is wide of the issue. We may readily 
admit that elasticity or flexibility is in no sense a desirable 
thing in those portions of the law which express public policy, . 
or in those matters of law where it is ethically immaterial 
what the rule be, so there be a rule. But in a great portion 
of our private law, only general rules can be laid down, and 
great latitude must be left to the courts in their application; 
and this will be the case whether the rules are judge-made or 
statutory. The reason why this part of the law should not be 
made statutory is that society is perpetually assuming new 
forms and perpetually in need of new law, and that the new 
law needed in this field can be furnished more rapidly and 
more smoothly by the courts than by the legislatures. That 
the American people really feels this to be true is indicated 
by the practical cessation, in all our codeless states, of statu- 
tory encroachment upon this field of judicial legislation. 


In the foregoing discussion I have endeavored to argue 
the question in the abstract, without reference to existing 
conditions. I have been reckoning, to some extent, with ideal 
quantities; 7.e., with factors of assumed value. I have as- 
sumed a judiciary that embodies the best talent of the legal 
profession, and is guided by the soundest traditions of Eng- 
lish-American jurisprudence; legislatures that represent the 
best instincts of the people and proceed according to the most 
approved principles of political science, making only such 
laws as are needed, and making them carefully and methodi- 
cally; and codifiers who can and will state accurately the ex- 
isting rules of our law, and who are able to group them into a 
scientific system. I have made these assumptions because I 


76 State Statute and Common Law 


have been trying to set forth the absolute and inherent advan- 
tages and disadvantages of the common law and of civil 
codes, of judicial and statutory legislation. In the social 
sciences, as in mathematics, no result of even relative truth 
can be obtained except by employing quantities of fixed 
value. If the quantities are in fact variable, the result must 
be corrected subsequently by taking account of the varia- 
tions. 

I do not propose to attempt this task. It is an ungrateful 
one; and the reader can do it for himself as well as I can do 
it for him. I think he will agree with me that the variation 
from the ideal standard is least in our judiciary; much less 
than in our legislatures. I think it a matter of notoriety that 
the American people is at present much better satisfied with 
its judges than with its legislators. The best proof of this is 
that the judges have been. let alone, in our older states, for 
the last half-century. The legislators have not been let alone. 
Besides the encroachments of the constitution-making power 
which have been noticed above, and which express the deter- 
mination of the people to define directly its most vital inter- 
ests, there is another class of constitutional provisions which 
have been increasing in number with every constitutional 
revision, and which express profound distrust of the char- 
acter and efficiency of the legislatures. What most concerns 
us here is the attempt to lessen the activity of these bodies. 
In most of the states the legislatures have been confined to 
biennial sessions; in thirteen states the number of days is 
prescribed beyond which they shall not remain in session.*’ 
All this means, of course, that the people wishes the least pos- 
sible amount of legislation from its legislatures; and it cer- 
tainly does not look as if the people really desired to transfer 
to the legislatures the duty of developing the entire private 
law. 

I think the variation from the ideal is greatest in our codi- 
fiers. ‘This remark is less invidious than it seems, because 


17 For a complete collection of the constitutional provisions indicating 
popular distrust of the state legislatures, see ‘The American Common- 
wealth,” Political Science Quarterly, vol. i, pp. 27 et seq. 


State Statute and Common Law | 


the kind and grade of capacity demanded are higher in the 
case of the codifier than in that of the ordinary legislator or 
the judge. The capacity of our codifiers, of course, can be 
determined only by their work, by the codes that have been 
adopted and by the codes that are proposed for adoption. 

The code which has been most fully investigated is that 
which was prepared for New York, but which has not been 
adopted in this state. It has twice been passed by the legis- 
lature and vetoed by the governor; it has twice been rejected 
by the legislature. It is again before the legislature at this 
moment. Although it has not been adopted by the state for 
which it was prepared, it has been adopted as the civil code 
of California. 

This code is not an accurate presentation of our common 
law. The testimony of the lawyers of California, who are 
living under it, and the testimony of the lawyers of New 
York, who are afraid that they may have to live under it, 
agree upon this point.** Nor is it scientifically satisfactory 
in its general plan or in its details. Its general arrangement 
is based upon that of the code Napoleon; an arrangement 
which is now regarded, in Europe, as antiquated and un- 
satisfactory. It reproduces some of the worst features of 
that code; particularly in its abundance of definitions and 
rules of interpretation. 

That these matters should not be inserted in a code is now 
a maxim of European codification. The Austrian commis- 
sioners appointed to draft a code, in 1772, were instructed to 
omit everything “‘ which does not belong in the mouth of the 
lawgiver, but in the lecture room.” *® The judgment of 
the French jurists of the present day concerning the rules of 


18 See among numerous other publications: J. N. Pomeroy (Professor 
of Municipal Law in the University of California), ‘The Civil Code in 
California,” in the West Coast Reporter, vols. iii and iv, reprinted by the 
New York City Bar Association, 1885; James C. Carter, The Proposed 
Codification of our Common Law, 1884; The Annual Reports of the Special 
Committee of the New York City Bar Association, 1881-1885, particularly 
the Fourth Annual Report, 1884. See also Sheldon Amos, An English Code, 
pp. 99-107, where the New York code is unsparingly condemned. 

19 Behrend, Die neueren Privatrechts-Kodifikationen, S. 370, Anm.,; 
Unger, Oesterreichisches Privatrecht, S. 7. 


78 State Statute and Common Law 


interpretation (of contracts and testaments) and concerning 
the definitions of the code Napoleon, has been energetically 
expressed by M. Huc, professor of the code in the law 
faculty of Toulouse. He stigmatizes them as “ senseless 
rules (dispositions banales), which are useless when they are 
not dangerous, and which, in any case, belong exclusively in 
the domain of jurisprudence [la doctrine] and not in that of 
the legislator.” *° 

The New York codifiers have not only reproduced these 
“useless if not dangerous ”’ provisions of the code Napoleon; 
they have outdone the French codifiers by reproducing, in 
their ‘‘ maxims,” Justinian’s regulae juris, that title of the 
Digest which, as all students of medizval jurisprudence are 
aware, did more than anything else to confuse the law and 
make its application uncertain. 

But these mistakes are venial in comparison with the great 
error of trying to force our law into the mould and form of a 
foreign system; because this cannot be done without modify- 
ing its spirit and substance. It seems that other codifiers 
besides those of New York have committed this error; for 
Mr. Stimson finds “ civil ” (z.e., European) law in all our pri- 
vate law codes. This ought to set us thinking. Why do all 
our codifiers go to France to find a scientific system? Is it 
not because they are unable to find it at home? 

When it was proposed, in 1815, that a civil code should 
forthwith be constructed for Germany, Savigny objected that 
German legal science was not sufficiently developed to war- 
rant the undertaking. To-day every German jurist admits 
that Savigny was right. 


In the introduction to this article, I indicated that there 
were two distinct questions to be answered. I have discussed 
the first only, v7z., the probable effect of codification upon the 
codifying state. The second, and, in my opinion, the more 
important question, v7z., the effect of the general adoption of 


20 Le Code civil italien et le Code Napoléon. 2™@ ed., Paris, 1868, t, i, 
1 As 


State Statute and Common Law 79 


state codes upon the general development of American law, 
will form the subject of a second paper. 


III 


When, in this country, we distinguish statutory from com- 
mon law, we habitually think only of the different sources 
from which these two bodies of law proceed. The antithesis, 
in our minds, is between judge-made law and that enacted by 
legislatures. But (if we leave the federal statutes out of the 
question) there is another and very important difference. 
Our state statutes are local law, while the common law, as its 
name implies, is a national system. This, the political point 
of view, has been strangely ignored in all recent discussions 
concerning the advisability and the effect of state codifi- 
cations. 

That this point of view has been neglected is due to a lack 
of agreement upon the principal premise. It is not uniformly 
recognized that our common law is a national system. Even 
in the Supreme Court of the United States it has been said, 
obiter, that there is no national law except the constitution, 
the treaties and the laws of the United States.** Now it is 
quite true that there is no other supreme national law; no 
other law, that is, which overrides the statutes of the single 
states. But the law which regularly prevails in the absence 
of other law, national or local, may properly be called na- 
tional law, and it is in this sense only that the term is applied 
to the common law. It is our subsidiary national law. 

It has also been said, again in the Supreme Court of the 
United States, that the common law obtains only so far as it 
has been “‘ adopted by the several states, each for itself.” * 
This is not quite true. Under the constitution and laws of 
the United States lies, as the recognized basis of interpreta- 
tion, the law which our forefathers brought from England; *° 
and in every domain of jurisdiction assigned to the federal 


21 Wheaton vs. Peters, 8 Peters 591, 657 ff. 
22 Wheaton vs. Peters; Smith vs. Alabama, 124 U.S. 465, 478. 
23 Smith vs. Alabama, Joc. cit. 


80 State Statute and Common Law 


judiciary, this law in fact prevails in the absence of opposing 
statutory law, national or local. In the single states, on the 
other hand, it is true that the common law obtains only so far 
as it has been adopted; but the adoption was not dependent 
upon any legislative act. The English common law lay at 
the basis of our colonial civilization, and the acts by which 
the majority of our commonwealths recognized or ‘“‘ adopted ” 
it were simply declaratory. It would no more have ceased to 
prevail in the absence of such acts than would the English 
language. Except where its rules are absolutely inapplicable, 
and except in those parts of the country where it is not a 
national heritage — where the colonists and all their institu- 
tions were French or Spanish, — the English common law, in 
the absence of opposing statutes, is the law of the land. 

The recognition of this fact, that our common law is a 
national system, is further impeded by the method in which 
it has been developed since the establishment of our inde- 
pendence, and by the legal theories under which this develop- 
ment has proceeded. Its interpretation — which of course 
means its development — has been largely entrusted, under 
our constitutional system, to the state courts; and it has been 
difficult for the layman, and still more difficult for the lawyer, 
to conceive that a law interpreted by the judiciaries of nearly 
forty independent states could remain for more than a cen- 
tury really national. And even in the federal courts, the 
natural organs for the development of national law, the fact 
that the law applied is national has been cloaked from the 
outset under a contrary theory. Barring the cases where 
the United States courts apply supreme national law, — that 
is, the constitution, treaties and laws of the United States, — 
their jurisdiction rests upon the following provision of the 
constitution: 


The judicial power shall extend . . . to all cases affecting 
ambassadors, other public ministers, and consuls; to all cases 
of admiralty and maritime jurisdiction; to controversies to 
which the United States shall be a party; to controversies be- 
tween two or more states; between a state and citizens of 


State Statute and Common Law SI 


another state; between citizens of different states; between 
citizens of the same state claiming lands under grants of 
different states; and between a state, or the citizens thereof, 
and foreign states, citizens or subjects.”* 


In the exercise of this jurisdiction, the United States courts 
are controlled by the Judiciary act of 1789, chapter 20, sec- 
.tion 34, which provides: 


That the Jaws of the several states, except where the con- 
stitution, treaties, or statutes of the United States shall other- 
wise require or provide, shall be regarded as rules of decision 
in trials at common law in the courts of the United States, in 
cases where they apply. 


In all cases, therefore, where the federal courts obtain juris- 
diction under the constitution and laws of the United States, 
and where no provision of the supreme federal law is appli- 
cable, they are obliged first to determine in what state the law 
governing the case is to be sought, and then to find and apply 
the law of that state. 

But how has the Supreme Court of the United States inter- 
preted this command? It has declared, in an unbroken series 
of decisions, that if the law governing the case is common 
law, it (the Supreme Court) is not bound by the interpreta- 
tion placed upon that law by the courts of any state, but will 
follow its own judgment. In 1838 Justice Story said: 


Questions of a general and commercial nature . . . are 
not deemed by the courts of the United States to be matters 
of local law, in which the courts of the United States are 
positively bound by the decisions of the state courts. They 
are deemed questions of general commercial jurisprudence, 
in which every court is at liberty to follow its own opinion.” 


In 1842 the Supreme Court at Washington declared: 


In all the various cases which have hitherto come before us 
for decision, this court have uniformly supposed, that the 
true interpretation of the thirty-fourth section limited its ap- 

24 The jurisdiction granted by this clause is limited, of course, as far as 


suits against states are concerned, by the eleventh amendment. 
25 Robinson vs. Commercial Insurance Co., 3 Sumner 220, 225. 


82 State Statute and Common Law 


plication to state law strictly local, that is to say, to the 
positive statutes of the state, and the construction thereof 
adopted by the local tribunals. . . . It has never been sup- 
posed by us, that the section did apply, or was designed to 
apply, to questions of a more general nature, not at all de- 
pendent upon local statutes, . . . as, for example, to the 
construction of ordinary contracts or other written instru- 
ments, and especially to questions of general commercial’ 
law.”° 


These decisions have been followed, in uninterrupted line, by 
others of like import.”’ In the construction of a deed con- 
veying land in the state of Maine, the federal court disre- 
garded the views of the supreme court of that state, assert- 
ing its right to interpret “‘ matters and language belonging to 
the common law ”’ as it saw fit.”* In the exercise of its equi- 
table jurisdiction,”® and in its ecclesiastical decisions, it has 
always maintained equally free hand. In a case of the latter 
sort, that of Watson vs. Jones,*° the Supreme Court of the 
United States had occasion to apply the law of Kentucky; 
and, finding no statute, overturned the decision of the su- 
preme court of that state, and at the same time departed from 
the English decisions — thus making absolutely new law. 

But what law is this — this law which the Supreme Court 
of the United States creates, changes and destroys at its will? 
Is it state law, or is it national law? In some cases the court 
seems to avoid the question. In commercial cases it has more 
than once declared that the commercial law is “ inter- 
national”; but it does not seem in any such case to have 
sought its precedents outside of the English and American 
reports. In other cases, it has sometimes declared the ques- 

26 Swift vs. Tyson, 16 Peters 1, 19. : 

27 Carpenter vs. Providence Insurance Co., 16 Peters 495, 511; Foxcroft 
vs. Mallett, 4 Howard 353, 379; Meade vs. Beale, Taney 339, 360; Oates 
vs. National Bank, 100 U.S. 239, 246; Railroad Co. vs. National Bank, 102 
U.S. 14, 29; Williams vs. Suffolk Insurance Co., 3 Sumner 270, 276; Austin 
vs. Miller, 5 McLean 153, 157; Gloucester Insurance Co. vs. Younger, 2 
Curtis 322, 339; The Brig George, Olcott 89, ror. 

28 Foxcroft vs. Mallett, 4 Howard 353, 370. 

29 Neves vs. Scott, 13 Howard 272, and cases there cited. 


30 73 Wallace 679. For discussion of this case, see Burgess, Religious 
Associations, Andover Review, July 1887. 


State Statute and Common Law 83 


tion to be one of “ general jurisprudence ” ; but where this 
phrase is used, it is not demonstrable that the principles of 
general jurisprudence resorted to were other than those of the 
common law. As a rule, however, the court asserts or im- 
plies that, in interpreting and applying the common law, it 
is actually enforcing “‘ the laws of the several states,” as the 
Judiciary act directs. The latest declaration to this effect 
occurs in the case of Smith vs. Alabama, decided January 
30, 1888. Mr. Justice Matthews, who delivered the opinion 
of the court, said: 


A determination in a given case of what that [the state] 
law is may be different in a court of the United States from 
that which prevails in the judicial tribunals of a particular 
state. This arises from the circumstance that the courts of 
the United States, in cases within their jurisdiction, where 
they are called upon to administer the law of the state in 
which they sit or by which the transaction is governed, exer- 
cise an independent though concurrent jurisdiction, and are 
required to ascertain and declare the law according to their 
own judgment. ‘This is illustrated by the case of Railroad 
Co. vs. Lockwood, 17 Wallace 357, where the common law 
prevailing in the state of New York, in reference to the liabil- 
ity of common carriers for negligence, received a different 
interpretation from that placed upon it by the judicial tri- 
bunals of the state; but the law as applied was none the less 
the law of that state. ° 


It seems clear to me, on the contrary, that the law applied 
‘in the case of Railroad Co. vs. Lockwood was not the law of 
New York. According to all legal logic, the interpretation 
placed upon the law of a state by its highest court is the law 
of that state; and if a court of Kentucky, or a court of the 
United States, in pretending to apply a rule of New York 
law, gives it a different interpretation and effect from that 
which the highest New York court has given, then neither 
the Kentucky nor the United States court applies the law 
of New York. This consideration has been conclusive with 
the Supreme Court of the United States as far as state 


84 State Statute and Common Law 


statutes are concerned. When the state law is statutory, the 
federal courts recognize the authority of the state interpre- 
tation, declaring that a well-settled construction is a local 
rule.** But the argument is really stronger when the rule 
governing a particular question is of judicial origin. A statute 
is one thing and its interpretation is another. Different 
courts may give diverse interpretations, and maintain in 
each case that they are applying the statute. But a rule of 
common law exists only in its interpretation; it is nothing 
but a series of concurrent decisions. Change its interpre- 
tation, and you change the thing. 

The theory of the Supreme Court, that in putting its own 
interpretation upon common law it is applying state law, is 
therefore obviously a legal fiction. But the fiction is a nec- 
essary one. It was forced upon the federal courts by the 
language of the Judiciary act, which in fact recognizes no 
national law except “ the constitution, treaties |and| statutes 
of the United States.” And this fiction is a power. It has 
been said that the English Parliament could not make a man 
a woman; but it could establish a legal fiction to that effect, 
and cause a particular man to be subjected to all legal dis- 
abilities which attach themselves to womanhood. The fed- 
eral courts cannot make their interpretation of the common 
law “‘law of the several states”; the logical impossibility 
in this case is as complete as the natural in the other; but 
they can make their interpretation law in the several states, 
as far as their jurisdiction extends, and this they have done. 

Without this fiction the Supreme Court of the United 
States would be reduced to a subordinate and unworthy 
position. It would discharge, as against the supreme court 
of any single commonwealth, the office of a district court, fol- 

81 Burgess vs. Seligman, 107 U.S. 20, 33, and cases there cited; Flash vs. 
Conn., 109 U.S. 371, 378; Gibson vs. Lyon, 115, U.S. 439, 445; Norton 
vs. Shelby County, 118 U.S. 425, 439, Hanrick vs. Patrick, 119 U.S. 156, 170. 
— Such cases as Ohio Insurance Co. vs. Debolt, 16 Howard 416, 432; Watson 
vs. Tarpley, 18 Howard 517, 520; and Pine Grove vs. Talcott, 19 Wallace 666, 
677, form no exception to the rule. These decisions rest upon the clause in the 
federal constitution forbidding the states to impair the obligation of con- 


tract; a prohibition which, in the view of the Supreme Court, extends to 
state courts as well as state legislatures. 


State Statute and Common Law 85 


lowing the decisions of a higher tribunal. It would then be 
only logical, instead of removing cases from the state courts 
to the federal courts on writ of error, to give defeated suitors 
appeal from the Supreme Court at Washington to the su- 
preme court of the state whose law is recognized as deter- 
minant of the issue. Without this fiction, again, our common 
law could hardly have remained what it is, a substantially 
uniform system. Every student of state reports knows 
how great an influence the federal interpretation of the com- 
mon law has exercised upon our state courts; how often a 
side current of state decisions has been drawn back into 
the main stream of judicial interpretation by a decision of 
the supreme federal tribunal. Unchecked by the great au- 
thority of this court, the interpretation of the common law in 
the different states must have been far less consistent. The 
law of each state would have diverged from that of the others, 
until the common law of the nation had become a meaning- 
less phrase. 

When it is remembered that the Supreme Court has been 
able to maintain its uniform interpretation of the law only by 
steadily affirming that the national law which it applies is 
state law, the paradox is perfect. The court has kept our 
common law national by ignoring the existence of a national 
common law. It is one of the cases, not infrequent in legal 
history, where a legal fiction keeps law in harmony with po- 
litical verities. 

The position taken by the Supreme Court of the United 
States has necessarily exercised a great influence upon the 
state courts. They too, while affirming the common law to 
be state law, have treated it as a national system; ** they 


32 In Faulkner vs. Hart, 82 N. Y. 413, the New York Court of Appeals 
followed the theory of the federal courts. The law governing the case, it 
was recognized, was the law prevailing in Massachusetts;; but in Massachu- 
setts the law concerning the point at issue was common law; and in inter- 
preting the common (commercial) law, the New York court declared itself 
in no wise bound to follow the decisions of the Massachusetts courts. It 
accordingly decided the case on its own theory of the common law. This, 
to my mind, involves a recognition of the national character of the com- 
mon law. The court disclaimed the intention of applying New York law, 
and undertook to apply the law prevailing in Massachusetts; but it cer- 


86 State Statute and Common Law 


have always paid great regard, not only to the decisions of 
the federal courts, but to those rendered in other states; they 
have always discussed with especial interest those cases 
where the views held by courts of different commonwealths 
are found to be in conflict, and they have generally been ani- 
mated by a sincere desire to bring out of such discords a more 
perfect harmony. In a word, they have done their best to 
keep the common law common. This effort is doubtless due, 
in part, to considerations of public policy. Our judges are 
well aware that conflicting decisions cause practical incon- 
venience, embarrassing business and confusing family rela- 
tions. But another and more subtle influence has made for 
unity in the development of our judicial law, — I mean the 
theory of the common law itself concerning the source of its 
rules. Theoretically, the special rules of the common law are 
derived from a pre-existing body of general principles, and 
when a new question arises the answer is to be found by de- 
ducing from some recognized principle the required new 
rule.** This conception has great and beneficent results. 


tainly did not apply Massachusetts law, for the case, it was conceded, would 
have been decided by the Massachusetts courts in the opposite sense; there- 
fore the common law, in Massachusetts, is something other and something 
more than Massachusetts law. 

83 In point of fact, the rules of every legal system are ultimately de- 
termined by social needs, and the principles (which are nothing but very 
general rules) are obtained by induction from the (special) rules. But 
as the work of induction goes on, and the formulation of principles be- 
comes more perfect, new rules can be and are obtained by deduction from 
accepted principles. In this sense, the theory of the common law is true. 
But this does not invalidate my assertion that the rules are ultimately 
determined by social interests; for if the rule obtained by deduction does 
not work well (i.e., does not correspond to the social necessities which it 
is designed to meet), it is discarded, and a “ positive” rule, accepted contra 
tenorem juris and propter utilitatem, is set in its stead. Then the princi- 
ple is burdened with an exception, and perhaps with a second and a third; 
until the development of juristic science shows that the principle was wrongly 
formulated, and so recasts it that all the exceptions become corollaries. In 
this sense it is perpetually true that the principles themselves are determined 
by induction. Just as the rules of judge-made law are “ working rules,” 
subject to continual amendment, so the principles are ‘“‘ working hypoth- 
eses,” subject to continual correction — and therefore capable of continuous 
development. 

But the decision of a concrete case, in a court of law, is always a de- 
ductive operation. In the simplest cases, the opinion of the court is re- 
ducible to a syllogism, of which the major premise contains the rule of 
law, the minor premise the facts of the case, and the conclusion the de- 
cision. In more complicated cases, the judicial reasoning consists of a 


State Statute and Common Law 87 


Since every case is regarded as a scientific problem, to be 
solved by logical deduction from established premises, con- 
tradictory results awaken a certain impatience. Jurists who 
differ in their conclusions are eager to detect the cause of the 
difference, the error in their own reasoning or the fallacy in 
that of their opponents. The comparison of conflicting de- 
cisions thus becomes not merely natural but inevitable; and 
their discussion is less apt to be barren of result than most 
controversies, because the disputants commonly admit each 
other’s premises. Even under these conditions, argument 
will not always produce agreement; but agreement is infi- 
nitely easier than it would be if the courts approached new 
questions as legislators do, and endeavored to solve every 
problem by a direct appeal to “‘ public policy.” Agreement, 
in fact, has so generally been attained, that, in spite of the 
limitless possibility of divergence afforded by the number of 
our states and the independence of their courts, the inter- 
pretation of the common law remains fairly uniform through- 
out the Union. 

From the point of view here taken, we have in the United 
States four great bodies of law: 

(1) The constitution, treaties and statutes of the United 
States; 

(2) The constitutions and statutes of the several states; 

(3) The common law as interpreted by the federal courts; 
and 

(4) The common law as interpreted by the state courts. 

Of these, the first represents strictly national law; and the 
third and fourth, although in theory local, are really national 
also. The second, on the other hand, in theory and in fact 
alike, is simply and strictly local. The order of validity is 
that in which I have placed them. Each of these bodies of 


series of syllogisms. When a new rule has to be formulated, a syllogism 
is employed in which the major premise is one of those broad generaliza- 
tions which we call principles. When I say that these principles are really 
obtained by induction, I assert what John Stuart Mill, in his famous dis- 
cussion of the syllogism, claims to be true of major premises generally; 
see his System of Logic, book ii, ch. iii. 


88 State Statute and Common Law 


law overrides those which follow, and each is overridden by 
those which precede. The entire common law is thus at the 
mercy of our state legislatures. As soon as a State statute 
seizes the ground previously occupied by a rule of common 
law, not only are the state courts bound to give it effect, but 
the federal courts, in applying the law of that state, are bound 
not merely by the words of the statute but also (as the Su- . 
preme Court has regularly declared) by the interpretation 
placed upon that statute by the highest court of the state. 
Every state statute which invades the domain of the common 
law therefore invades and pro tanto destroys the subsidiary 
national law of the land. 

Now a code, as the phrase is commonly understood, is in- 
tended to supersede the entire common law of the state in 
which it is enacted. It is intended to make the law of that 
state wholly statutory. Accordingly, the adoption of such 
codes in all our states would entirely destroy our subsidiary 
national law. It may be objected that the intent of the 
codifier is usually not to change, but to declare, the common 
law. To this the obvious and immediate answer is, that all 
the codes that have been adopted, and all that are proposed, 
do in fact involve changes. But even if this were not the 
case, and even if we assume, for the sake of argument, the 
establishment in each of the several states of codes simply 
declaratory of pre-existing common law, the point of greatest 
consequence is not touched. The chief question is: What 
will be the effect of the general adoption of state codes upon 
the general development of our law? For law, it must always 
be remembered, cannot remain stationary. It must change 
with the changing form and needs of the society which it 
rules. 

What, in the first place, will be the effect as regards the de- 
velopment of our law by interpretation? As far as the single 
states are concerned, the inevitable results have been sketched 
in my previous paper. The effect upon the nation at large, 
upon the unity of our law, remains to be noticed. Unless the 
Supreme Court of the United States changes its practice, the 


State Statute and Common Law 89 


construction of all these codes will lie wholly with our state 
judiciaries.** If the Supreme Court adheres to the rule it has 
heretofore recognized, and follows the construction placed 
upon each state statute by the highest state court, the con- 
trolling influence which the federal judiciary now exercises 
upon the interpretation of our common law will disappear. 
And not only will this regulative influence vanish, but another 
force that has worked for harmony in our state decisions will 
cease to be felt. From the standpoint of legal science, the 
interpretation of words is a much lower and less interesting 
problem than the deduction of rules from principles; and 
since the construction of our code law in the different states 
will turn largely upon the exact meaning of words, the state 
courts will take much less interest in, and pay far less heed 
to, each other’s decisions than is now their custom. 

Judicial interpretation, however, will play but an insignifi- 
cant part in the development of code law. Codification 
means the substantial transfer of the law-making function, 
within the domain now occupied by common law, from 
the federal and state judiciaries to the state legislatures. The 
question of the development of our law, regarded from the 
national standpoint, accordingly shapes itself as follows: — 
How will our state legislatures acquit themselves of this task? 
Will they show the same comprehension of the needs of the 
nation, the same disposition to keep its law uniform, which 
the state judiciaries have manifested? I fear these questions 
can hardly be answered in the affirmative. Forty-six state 
and territorial legislatures cannot be expected to work with 
harmony of purpose and unity of result. There is for them 
no such regulative central influence as is exercised over our 
state judiciaries by the Supreme Court of the United States; 
there is for them no such agreement upon the premises and 
methods of their action as exists for our state courts in the 

34 It is noticeable that in its more recent decisions the Sypreme Court 
does not say that it is bound to follow the state courts in their construction 
of state statutes, but that it does this “for the sake of harmony and to 
avoid confusion. 2 If, therefore, greater confusion would be caused by fol- 


lowing conflicting constructions of similar statutes in different states, it 
seems probable that the court would change its practice. 


go State Statute and Common Law 


theory of the common law. The prime aim of the state legis- 
lator, be he ever so honest and ever so able, is to serve the 
people of his section, to defend their peculiar interests and to 
realize their peculiar wants. If by chance he rises above the 
needs of his section, he is limited by his office to the consider- 
ation of the interests of his state. It is not his duty to take 
thought for the American people. These a priori conclusions 
are confirmed by facts. In those portions of the law of which 
our state legislatures have assumed control, there is a lam- 
entable and increasing divergence. I have shown in my 
previous paper that, in our codeless states, a natural and 
unconscious division has been made in the field of legislation; 
that the legislators have taken control of all questions which 
directly involve a social interest (public law), but have left 
to the courts those matters in which the interests affected are 
primarily individual (private law).*° From the standpoint 
of the state, this adjustment is satisfactory; from that of the 
nation, itis not. There are many questions which fall within 
the domain of public law, and of which our state legislators 
have assumed control, in which the nation has an interest 
higher than that of the state —the interest of unity. Our 
state legislators, rightly leaving the great body of our com- 
mercial law in the control of the courts, have generally en- 
acted and have largely changed the law of commercial paper 
and that of interest and usury; and they have assumed almost 
entire control of the law of marriage and divorce.*® In both 
cases they have acted rightly, from their point of view; for 
all these subjects involve direct interests. But the result of 
their action has been disastrous to the country at large. It is 
precisely in commercial law and in the law of marriage and 
divorce, that the national need of uniform law is strongest. 
Diversity of commercial rules in the several states impedes 
and annoys business, for American business pays little heed © 


to state lines. Conflicting laws of marriage and divorce un- | 


35 The peculiar sense in which I employ these words, public and pri- 
vate, is explained in my previous paper, p. 122. 

86 See the data furnished by Mr. Stimson, Political Science Quarterly, 
vol; Hi, DD. 129,118: 


State Statute and Common Law QI 


settle family relations and undermine the moral basis of 
society. 

The degree of confusion which our laws of marriage and 
divorce have reached, is a matter of common notoriety. It 
is possible, for example, that a man married in New York, 
divorced and re-married in Indiana, shall be the lawful hus- 
band of one woman in Indiana, and shall be regarded by the 
law of New York as the husband of another. By the law of 
Indiana his status is completely regular; by the law of New 
York he is a bigamist. He may have a second family of 
children, who by the law of Indiana are legitimate, but by the 
law of New York are bastards. It is needless to insist upon 
these facts, because the matter is already so universally regu- 
lated by statute that codification can do no harm. They are 
instanced here simply to illustrate the tendency of our state 
legislations to diverge upon matters of national concern. 

In the domain of commercial law, the case is different. 
There is already legislation enough, and enough conflict of 
. legislation, to harass the business of the country. At every 
meeting of the American Bankers’ Association, for example, 
complaints are made and resolutions passed concerning the 
diversity of the bankrupt laws and the laws regulating com- 
mercial paper in the different states; and committees are 
regularly appointed to urge upon Congress the necessity of 
passing a national law of bankruptcy, and other committees 
to consider the possibility of obtaining more uniform legisla- 
tion in reference to bills and notes.*’ But in the domain of 
commercial law, the inroads of the state legislations have 
been comparatively trifling. In the main, the law of movable 
property and of contracts is still common law, and its devel- 
opment is still in the hands of our federal and state judi- 
ciaries. Here then the general adoption of state codes will 
work a great change; and if our state legislatures, in assum- 


87 The proceedings of the annual conventions of this association are 
regularly published, and can be obtained from the secretary, 237 Broadway, 
New York City. It is useless to cite years and pages, because all of the 
recent proceedings that I have examined contain these complaints and 
resolutions. 


Q2 State Statute and Common Law 


ing control of this field, show the same indifference to the 
business interests of the nation which they have shown to its 
moral interests in their treatment of the marriage and divorce 
laws, the results will be, not more serious, for nothing can be 
more serious than the demoralization of our people, but cer- 
tainly grave in the extreme. : 

I think I have maintained the theses with which I opened 
this discussion: ** that the ultimate effects of state codifica- 
tion are far more important than those which lie upon the 
surface; and that the relation of the movement to the general 
development of our law is vastly more important than its 
results for good or evil in any single state. 

Considering, now, that a number of our states have already 
adopted complete civil codes, or codes which claim, at least, 
to cover the entire field of the common law; and considering 
the pertinacity of the movement in other states, I am tempted 
to go beyond the original plan of this discussion and endeavor 
to forecast the ultimate consequences of this threatened de- 
nationalization of our law. If my views were the outcome 
of pure speculation, or the result of a balancing of proba- 
bilities, I should not undertake this task. But, on the con- 
trary, they rest upon the experience of other nations, whose 
legal development, in its earlier stages, is so strikingly analo- 
gous to our own that I cannot avoid the conclusion that we 
are destined to traverse the further stages which they have 
completed or are completing. Shakespeare has stated very 
accurately the possibilities and the limitations of historical 
inference, in affirming that a man who observes “ the nature 
of the times deceased ”’ 

. . . may prophesy, 
With a near aim, of the main chance of things 
As yet not come to life, which in their seeds 
And weak beginnings lie intreasuréd. 
Such things become the hatch and brood of time. 


88 See above, p. 52. 


State Statute and Common Law 93. 


IV 


The evolution of continental European law, since the six- 
teenth century, may be summarized, roughly, as follows: gen- 
eral or common law is gradually destroyed by local codes, 
and these local codes are ultimately replaced by national 
codes. To comprehend this development, we must start far 
back of the sixteenth century. We must go back to the over- 
throw of the West Roman empire, in the fifth century, and 
follow, at least in its main lines, the movement of European 
law during the intermediate thousand years. 

The conquerors of the Roman empire were barbarians. 
They swept away, not the rule of Rome only, but its civiliza- 
tion. They did not attempt to maintain and enforce its laws; 
they lived by their own simple tribal customs. On the other 
hand, they made no systematic attempt to destroy the Roman 
law or to force Germanic usages upon the conquered Romans. 
They suffered these to live by their own law. But in the 
wreck of the Roman civilization, the Romans had no longer 
any use for a highly evolved system of jurisprudence. The 
Roman law survived only as a body of adages and rules — 
the local custom of separate communities. 

In the midst of this general destruction, something — and 
not a little — was saved by the church. The German con- 
querors were, or soon became, Christians. They left the or- 
ganization of the church intact, and suffered it to control its 
own personnel and to manage its own affairs. It did this, and 
more. It assumed many state functions, which the rude gov- 
ernments of the middle ages were unable to discharge. It 
cared for education and dispensed charity. It drew into its 
domain the entire control of the family relations. It under- 
took, partly in its own interest, to enforce testaments. It 
was able to do all this, because it had brought over from the 
Roman into the medieval world a well-developed govern- 
mental organization. It added to this a complete system of 
courts, with appeal to Rome. In the exercise of its judicial 


94 State Statute and Common Law 


powers, it developed an extensive body of law —the jus 
canonicum. 

The states that arose on the ruins of the empire — if the 
kingdoms of the Goths, the Burgundians and the Franks can 
be called states — confined their governmental activity to 
military affairs and the maintenance of the peace. The popu- 
lar courts administered the rough justice of the time, which 
consisted chiefly in the redress of torts.. It was not until one 
of these states conquered and annexed the others and the 
kings of the Franks became rulers of Christendom, that the 
legal development of Europe entered upon a new phase. 
Charlemagne, especially, laid the basis for a development of 
German usage into European law. He imposed upon the 
different tribes a body of imperial laws, passed with the con- 
sent of the magnates, and a body of equity law developed 
and enforced by a king’s bench and a system of circuit courts. 
He brought the county courts more fully under central con- 
trol, and introduced numerous reforms in procedure. But 
all these innovations perished with the destruction of the 
Carolingian empire. The kingdoms which established them- 
selves in its place were kingdoms in name only. They were 
feudalized from top to bottom. The offices of the empire be- 
came hereditary fiefs, and the magnates petty princes. Nor 
did the disintegration of the state stop with the independence 
of the crown vassals: the sub-vassals fought themselves, and 
later the cities bought themselves, free from all real control. 
The development of law became wholly particularistic. Each 
province, each city, each village and each manor even, 
evolved usages which, as local custom, overrode any higher 
law. Besides this local divergence, there arose distinctions 
of class: one law for the noble, another for the burgher, an- 
other for the free peasant and still another for the villain. 
And across the entire network of local laws and local courts, 
stretched the independent jurisdiction of the church. This 
state of things lasted, to fix a rough boundary line, until the 
latter part of the thirteenth century. 

In England, the conditions were quite different. The Nor- 


State Statute and Common Law 95 


man conquest had given the island a strong monarchy. In 
England, the Carolingian institutions reappeared: king’s 
bench, circuit courts, local judges appointed by the crown — 
an orderly and centralized administration of justice. The 
national common law of England was already in process of 
development. 

On the continent, nothing of the sort was possible. Neither 
in France, Germany nor Italy, was there any power capable 
of centralizing justice and creating national law. But Eu- 
ropean commerce had come to life again and assumed great 
importance, and the diversity and the resulting uncertainty 
of law were intolerable. The result was the singular histor- 
ical phenomenon which we call the “ reception ” of the Ro- 
man civil law. In Justinian’s digest the Italian jurists of the 
twelfth century found a system of law that was adequate to 
the needs of the new commerce. Schools of Roman law 
sprang up in Italy, were visited by students from all parts of 
Europe, and sent out masters and doctors by the hundreds. 
Returning to their homes, the civil doctors crowded the 
hereditary expounders of local usage off the judicial bench; 
under the fostering care of the kings and princes, there ap- 
peared a “ learned judiciary.””’ The law the doctors had 
learned was nearly a thousand years old and was written in 
a dead language, but it was not regarded by them, nor by 
their countrymen, as foreign law. All authority in Europe 
was derived ultimately from the Roman empire, and the Ro- 
man law was the law of the “ sacred predecessors ”’ of the 
German emperors and the French kings. Thus continental 
Europe obtained a common commercial law in the corpus 
juris civilis, as it had obtained a common family law in the 
corpus juris canonict. ‘This development was completed, 
roughly speaking, in the sixteenth century. 

It should be noted that both these legal systems, although 
embodied in what are called codes, are systems of case law. 
The most important part of Justinian’s compilation, the di- 
gest or pandects, is essentially a collection of decisions upon 
stated facts; and most of the imperial constitutions are noth- 


96 State Statute and Common Law 


ing more. The same is true of the code of canon law com- 
piled by Gratian about 1140, and enlarged by the addition of 
later decretals; for the papal decretals were usually decisions 
of actual cases. As case law, these codes were treated by the 
jurists and the courts with a certain scientific freedom, very 
much as our common law is treated by our courts. The dicta 
of the Roman jurists, emperors and popes were not construed 
like statutes. And for this reason again, the courts were 
able to develop new law from the old, finding the needed. 
rules by analogy or deduction, precisely as do our courts. 
So there grew up, on the basis of the Justinian digest, a novus 
usus pandectarum; and the development of law kept pace, 
after a fashion, with the needs of society. 

It should be noted, again, that these systems were “ re- 
ceived ” as subsidiary law only. Local law, whether written 
or customary, prevailed; and only in its absence was com- 
mon law applicable. But the civil doctors had little love for 
local usage, and demanded clear and complete evidence of 
its existence; which was not always easily obtainable. Thus 
in Germany the Roman civil law, especially during the pe- 
riod of the reception, overrode and destroyed many rules of 
German customary law. 

The reception, as I have said, was completed in the six- 
teenth century. Since that time, this subsidiary common 
law, resting upon and developed by judicial decisions, has 
been replaced everywhere save in a portion of Germany, and 
is in process of being superseded in Germany also, by codes 
of a statutory character, enacted by the legislative power. 
From these facts it is customary to draw the simple inference 
that code law is better than judge-made law. But a careful 
study of European codification *® leaves this apparently ob- 
vious inference doubtful, and suggests other — and, I think, 
far more important — conclusions. 


39 For the whole movement, but especially for Germany, see Behrend, 
“Die neueren Privatrechts-Kodifikationen,” in Holtzendorff’s Encyclopddie 
der Rechtswissenschaft, 4. Aufl. (1882). For France in particular, see 
Zacharia, Handbuch des franzosischen Civilrechts, Bd. I, §§ 7 ff., and 
Schaffner, Geschichte der Rechtsverfassung in Frankreich, Bd. IV, S. 304 ff. 


State Statute and Common Law 97 


In France, the particularistic development of law was 
checked, after the thirteenth century, by the growing power 
of the monarchy. The kings became strong enough to make 
the parliament of Paris a supreme court of appeal for the 
whole of France, and to control the procedure of the local 
courts. This judicial centralization gradually lessened the 
diversity of the local laws, but it came too late to enable the 
royal courts to develop a common law. In the southern prov- 
inces, where a rude form of Roman law had maintained itself, 
the Justinian law books were received, but only as subsidiary 
law; they prevailed only when the provincial customs fur- 
nished no rule of decision; and the provincial customs were 
themselves subordinated in the same way to the custom of 
each locality. In the northern provinces, single institutions 
and rules of the Roman law were adopted, but the corpus 
juris civilis was not received. The law remained customary. 
In course of time the customs were all reduced to writing, 7.e., 
codified; at first, in the thirteenth century, by private enter- 
prise; later, in the course of the fifteenth and sixteenth cen- | 
turies, under royal direction. Royal codification involved 
many changes or “ reformations,” largely in the direction of 
greater unity of law. But more was accomplished in this 
direction by the royal power of ordinance, which, as the mon- 
archy became more absolute, developed into a general power 
of legislation. The Ordonnance civile of 1667, the Ordon- 
nance criminelle of 1670, and the Ordonnance de commerce 
of 1673 were practically codes of civil and criminal procedure 
and of the law merchant. But at the outbreak of the Revolu- 
tion, in spite of all these reforms, France was far from pos- 
sessing unity of law. The pays du droit écrit in the south 
and the pays coutumiers in the north had fundamentally dif- 
ferent systems: the one was Germanic, with Roman infiltra- 
tions; the other Roman, with Germanic excrescences. In 


For Italy, Huc, Le Code civil italien et le Code Napoléon (1868), § 1, 
and authorities there cited. For Switzerland, de Riedmatten, ‘ Notice sur 
le mouvement législatif en Suisse, et specialement sur les derniers projets 
de codification,” in the Bulletin de la Société de legislation comparée, 1880, 
Pp. 455 eb seq. 


98 State Statute and Common Law 


the conquered eastern provinces, the Netherlands and the 
terres d’empire, the legal systems were again divergent. And 
within these four great divisions were hundreds of codified 
customs, provincial and local. This state of things was in- 
tolerable. Unity of law was one of the popular demands in 
1789. The “complaints and grievances” which the dele- 
gates of the local estates carried up to the Estates General in 
that year, were full of protests against this ‘‘ diversity of cus- 
toms, which, so to say, makes the subjects of the same realm, 
and often of the same province, foreigners to each other.” 
It was demanded “‘ that the provinces sacrifice to the nation 
their particular constitutions, capitulations and treaties,’ and 
that “a common law,” “a general, uniform, national code,” 
be established for all the realm.*° The revolutionary assem- 
blies declared, from time to time, in their laws and constitu- 
tions, that this should be done; that ‘‘ a general and uniform 
code of civil laws ” should be established; ** and the Con- 
vention caused a code to be drafted, but rejected the draft 
because it contained ‘‘ no new and grand ideas, suitable to 
the regenerated France.” Law was being made and unmade 
too rapidly to permit codification. It was not until the rev- 
olutionary storm had spent its force, and the first consul had 
established a strong and conservative government, that the 
desire of the nation could be realized. When Portalis intro- 
duced the first sections of the civil code into the Corps Légis- 
latif in 1803, he indicated, tersely and accurately, the causes 
which had led to codification, in declaring: 


Up to this time the diversity of our customs constituted, in 
one and the same state, a hundred different states. The law, 
opposed everywhere to itself, divided the citizens instead of 
uniting them. This condition of things could not last longer. 


And Grenier answered, in the same strain: 


40 Cahiers des Etats Generaux: vol. i, p. 747 (Amiens); vol. 2, p. 524 
(Cambrai) ; vol. ii, p. 593 (Chalons sur Marne) ; vol. iii, pp. 83, 84 (Vienne) ; 
vol. iii, p. 100 (Bayonne) ; vol. iv, p. 260 (Montreuil sur mer) ; vol. v, p. 288 
(Paris intra muros) ; vol. v, p. 571 (Riom) ; vol. vi, 230 (Fismes). 

#1 L. 16 (24) aott, 1790, tit. 2, art. 19; const. 3 (14) sept. 1791, tit. 1 (in 
fine) ; const. 24 juin, 1793, art. 85. 


State Statute and Common Law 99 


As regards the diversity of its laws, France was in almost 
the same state in which Cesar found it: Hz omnes lingua, 
institutis, legibus inter se differunt.*” 


Italy, which had given Europe common law, was unable to 
keep its own law common. Unlike the other nations of Eu- 
rope, the Italians had not even the semblance of a national 
organization; and the development of law, whether by judi- 
cial decisions or by legislation, was necessarily particular- 
istic. In the kingdom of Naples and Sicily, a civil code based 
upon the code Napoleon was published in 1819; and the 
kingdom of Sardinia was governed by a code of its own after 
1838. In the other states, the basis of the law was Roman; 
but the development of this law was not uniform, and the 
superimposed statute law was of course different in each 
state. The Italian jurists reckoned four or five “ principal 
systems ” of law in the peninsula. As soon as Italy obtained 
a central government and a national legislature, the Italians 
gave themselves a national law. The work began in 1860, 
and the civil code was published in 1865. 


The completed reception of the Roman law in Germany, 
and the beginning of a reaction against its rule, are almost 
synchronous. Germany had obtained a common law, but it 
was after all foreign law. Many of its rules seemed un- 
natural to the German instinct, and were not adapted to the 
needs of German society. Moreover, the enthusiastic devo- 
tion with which its theoretical symmetry inspired the civil 
doctors had resulted, as we have seen, in the reception of 
many rules of Roman law at the cost of genuine German law, 
embodied in unwritten local usage. But organs for the crea- 
tion of national law were wholly lacking. The empire had 
been losing ground and the “ territories” gaining independ- 
ence since the thirteenth century. The result of the religious 
wars in the sixteenth and seventeenth centuries was the defi- 
nite disintegration of Germany. There were imperial courts; 


42 “ Code civil ou recueil des lois qui le composent, avec les Epcours: 
rapports et opinions” (Paris, 1806), vol. i, pp. 25 34. 


100 State Statute and Common Law 


but the more important states obtained exemption from ap- 
peal. There was an imperial diet, theoretically capable of 
legislation; but after passing a criminal code (with great re- 
luctance and with careful reservation of established local 
usages ) in the reign of Charles V, this body lapsed into per- 
manent sterility. In the eighteenth century the empire was 
a mere shadow, and this shadow was destroyed by the revolu- 
tionary wars. In 1815 Germany was reorganized as a con- 
federation of sovereign states —a confederation destitute 
of executive, judicial or legislative authority. 

From the period of the reception, accordingly, the develop- 
ment of the law rested with the single states. In the seven- 
teenth century, collections of local ‘ statutes ” began to be 
made. These were merely rules of German customary law. 
In the eighteenth century, attempts were made to codify the 
subsidiary Roman law also, in order to remove uncertainties 
that had arisen in the practice of the courts. So there came 
into existence the Prussian (provincial) code of 1721, and 
the Bavarian code of 1756. In both cases, the common law 
remained subsidiary to the code. Very different in purpose 
and character were the Prussian code of 1794, the Austrian 
code of 1811 and the Saxon code of 1863. These law books 
endeavored to fuse the subsidiary Roman law and the local 
German usage; they were really codifications of the entire 
law of these states. The Prussian code left divergent pro- 
vincial customs in force; but the Austrian and Saxon codes 
swept them away. All three abolished the subsidiary com- 
mon law of Germany. Finally, during the revolutionary 
wars, the code Napoleon was introduced in the western part 
of Germany, and it remained in force in Baden and the Prus- 
sian Rhine province after the overthrow of the Napoleonic 
empire. | 

The abrogation of the “‘ foreign law ” was a relief in the 
codifying states, but the destruction of the common law was 
felt to be a disadvantage to Germany. The movement for 
unification of the law, for the creation of a national German 
law, began early in this century. Thibaut’s pamphlet, On 


State Statute and Common Law IOI 


the necessity of a general civil law for Germany (1814), 
called forth Savigny’s famous reply, On the vocation of our 
time for legislation and jurisprudence. Savigny took the 
ground that German legal science was not ripe for the under- 
taking, and also set forth the objections to code law in a way 
that has never been surpassed. That nothing came of Thi- 
baut’s suggestion was due less to the force of Savigny’s argu- 
ments, than to the fact that the German confederation had 
no legislative power. Popular dissatisfaction constantly in- 
creased, and the popular demand for national law, espe- 
cially in commercial matters, grew steadily stronger. The 
German parliament of 1848-9 took measures for the codifica- 
cation of the commercial law; but the revolutionary govern- 
ment did not last long enough to complete the task. The plan 
was taken up again in 1856, at the suggestion of Bavaria, and 
a commercial code was actually drafted. The Federal Diet 
had no power to enact this code; but it was adopted, with 
slight modifications, in all the single states. 

The establishment of the North German confederation in 
1867, and of the German empire in 1870, gave Germany a 
strong federal government. The constitution gave the federal 
legislature complete control over criminal law, civil and 
criminal procedure, and commercial law; and in 1869 the 
commercial code was revised and made federal law, in 1871 a 
criminal code went into force and in 1877 a code of civil and 
criminal procedure. In the domain of civil law, the constitu- 
tion gave to the federal legislature power over obligations 
only. In the constituent parliament of 1867, an amendment 
was proposed bringing the entire civil law within the federal 
competence; but the bill failed to obtain a majority even in 
the popular branch of the legislature, the Imperial Diet. In 
1869 the same amendment was passed by the Diet, but was 
thrown out by the house of states, the Federal Council. The 
same thing happened in 1871 and 1872; the Imperial Diet 
passed the amendment and the Federal Council rejected it. 
In 1873 the amendment was passed a fourth time by the 
Imperial Diet, and resolutions in its favor were secured from 


102 State Statute and Common Law 


the legislatures of the two most important states, Prussia 
and Bavaria. The Federal Council thereupon abandoned its 
opposition, accepted the amendment, and appointed a com- 
mission to draft a German civil code. This commission has 
been working ever since; with German deliberation, cer- 
tainly, and, it is to be hoped, with German thoroughness 
also. The preliminary draft is now completed and will soon 
be published. 

The debates to which this amendment gave rise, both in the 
imperial and the state legislatures, are full of interest and 
suggestion. It is pointed out that there are four principal 
systems of law existing in the empire, namely, the Prussian, 
French and Saxon codifications and the common law, with an 
infinite number of local variations. In the Imperial Diet, 
the National-Liberal deputy Miquel said: 


I believe all thoughtful jurists agree that such a state of 
things cannot continue, now that we have a common German 
representative body, capable of expressing the will of the 
whole people; that as a nation we must desire to set in the 
place of these various codifications a common German law.** 


In the Bavarian chamber of deputies, the minister of justice, 
von Faustle, declared: 


We are dealing here, gentlemen, with a domain in which 
the German efforts toward unity first made themselves 
felt. . ... While in earlier times, in the main at least, the 
common law mediated the inner community of the German 
legal life, it became evident after the dissolution of the Ger- 
man empire that the numerous particularistic developments 
of law and the efforts of the several states to proceed in- 
dependently in the establishment of their private law .. . 
worked harm only. Our legal life and science were thereby 
deprived of that inner community, the destruction of which 
was necessarily as prejudicial to the scientific culture of the 
law as to the satisfaction of the practical needs of the nation.** 

43 Verhandlungen des 1. deutschen Reichstags, 2. Session, S. 206 (Oct. 
25, 1871s 


44 Speech of Nov. 8, 1873, reprinted in Hirth, Annalen des deutschen 
Reichs, 1874, S. 329 fff. 


State Statute and Common Law 103 


The opposition in the Imperial Diet, as in the Federal 
Council, was based on state-rights theories. The leader of 
the Guelphs, Windhorst, declared that the adoption of the 
amendment meant the destruction of the federal character 
of the German union, and the abasement of the German 
sovereigns to the position of the Standesherren. ‘“ In twenty- 
five years,” he asserted, “‘ the house of Wittelsbach will hold 
the position which the house of Hohenlohe holds now.” To 
this the most distinguished of living publicists, Professor 
Rudolf Gneist, responded: 


If I took the federalistic point of view, I should feel bound 
to support just this proposal, because it establishes the sole 
condition upon which the independence of the single states 
in matters of internal administration can be maintained. 
For the centralization of administration does not arise 
through uniform legislation, adapted to the situation and 
to the needs of the time, but through the lack of organs for 
such legislation, which forces the state to furnish what is 
needed by the organization of a centralized bureaucracy 
[durch die Gewalten der Executive des Prafectenthums |.*° 


In comparison with the great national movements de- 
scribed above, the legal development of the smaller states of 
Europe is of slight importance. In many cases, through a 
natural dislike for legal isolation, these states have adopted 
codes patterned on those of their greater neighbors, or of 
the countries with which their commercial relations are 
most important. But there is one of these smaller countries 
which is developing, by codification, an independent system 
of law, and in which the movement is of especial interest be- 
cause the form of the state, as in Germany, is federal. 

The Swiss cantons did not receive the Justinian law when 
it forced its way into the rest of the empire. The conditions 
of life were so primitive that the old local usages were amply 
sufficient. As the confederacy grew in size and its civiliza- 
tion became less simple, no federal law was developed, be- 


45 Verhandlungen des 1. deutschen Reichstags, 4. Session, vol. i, p. 176 
(April 2, 1873). . 


104 — State Statute and Common Law 


cause the confederation possessed no law-making powers. 
These resided in the single cantons. Each canton, accord- 
ingly, went its own way. Six or seven established codes copied, 
with more or less modification, from the code Napoleon. 
About the same number followed the Austrian model. Zurich 
enacted an independent codification of its own. The rest 
of the cantons lived by their old customary law, more or less 
fixed by decisions and more or less modified by legislation. 
Switzerland thus possessed a variety of legal systems fairly — 
comparable to that which obtains in Germany. . 

This diversity of legislations produced the usual reaction, 
a movement toward unity. The obstacle to any thorough 
reform lay, as in Germany, in the constitution. In 1872 a 
constitutional amendment was submitted to the people, bring- 
ing the whole civil law within the legislative competence of 
the confederacy; but it failed of adoption. In 1874 a gen- 
eral revision of the constitution took place; and the revised 
constitution, which was accepted by the people, gave the 
federal legislature control of marriage, civil status, civil ca- 
pacity, all matters relating to commerce, transactions con- 
cerning movables, literary and artistic property, the prosecu- 
tion of debt, and bankruptcy. In 1881 federal laws were 
passed regulating civil capacity and obligations. The law of 
obligations is practically a code of commercial law in the 
widest sense, including the law of contracts and that of mov- 
able property. 


V 


The preceding sketch of European codification yields 
some important results. The movement in Europe to-day 
is national. Its object is to substitute uniform law for diver- 
gent local legislations. The relative merits of case law and 
statute law have not been and are not in question. ‘The issue, 
in many cases, is between a single national code and a vari- 
ety of local codes; in all cases, between national law and 
local law. And in every case the decision has fallen in favor 
of national law. From this point of view, the fact that France 


State Statute and Common Law 105 


and Italy have codified their civil law, and that Germany 
is about to follow their example, is no reason why New 
York or any other American state should codify. The move- 
ments are not analogous, but diametrically opposed. In 
Europe, the purpose of codification is to obtain common 
national law; in this country the effect of state codification is 
to destroy our national common law. 

To obtain any analogy to the movement now in progress 
in our country, we must go back of the.European movement 
of to-day. State codification in the United States falls in 
line with the codification of the provincial customs of 
France; with the Neapolitan and Sardinian codifications in 
Italy; with the Prussian and Saxon codifications in Ger- 
many; and with the cantonal codifications of Switzerland. 
But when we make this comparison, we must remember that 
in all these countries the local development of law was the 
result of the non-existence or the atrophy of all central law- 
making organs. In no case were active and productive cen- 
tral organs deliberately put out of action; in no case was the 
development of national law deliberately arrested. It has 
been left to American codifiers to propose this — for the 
first time in legal history. 

It should be remembered, finally, that the whole develop- 
ment of continental European law differs from that of the 
English law in one fundamental point. The Norman con- 
quest gave England a centralized governmental machinery 
and made the gradual and organic development of national 
law possible. The destruction of the Carolingian empire left 
Europe without law-making organs. Lacking these, no 
European state was able to develop common national law; 
and this inability resulted in the general acceptance of foreign 
law. Accordingly when the nations of Europe worked their 
way out of feudalism and developed effective governmental 
organizations, they naturally proceeded to rid themselves 
of the foreign law by substituting law of their own making. 
But the only method by which this could be done was codi- 
fication: local codification, if the law-making power was 


106 State Statute and Common Law 


local; national codification when the legislative power be- 
came national. 

The agitation for codification in England, to-day, is in line 
neither with the continental movement nor with the Ameri- 
can. It has neither the reasons in its favor which justify 
national codification in Europe, nor the reasons against it 
which militate against state codification in this country. 
The European. codes ‘substitute national statutes for local 
statutes. American codes substitute local statutes for com- 
mon case law. England, if it codifies, will simply substitute 
one form of national law for another, statute law for case law. 

Finally, the study of the codification movement in Europe 
gives us strong reason to believe that the ultimate result of 
the general adoption of state codes in this country will be a 
transfer of legislative power from the state legislatures to 
Congress, and the ultimate re-nationalization of our law by 
federal legislation. Everywhere in Europe the demand for 
legal unity has been precisely proportioned to the amount of 
legal diversity. If patriotic impulses have had much to do 
with the demand for national law, as was notably the case in 
Italy, it is true on the other hand that the inconveniences 
and annoyances caused by conflicting local legislations have 
everywhere been a potent factor in fostering a spirit of 
national patriotism. All political feelings are the product 
and expression of social interests. 

The history of the movement in Germany and Switzerland 
is especially suggestive, because in these federal states the 
proposal to increase the legislative power of the central 
government encountered prejudices precisely similar to those 
which exist in the United States. The triumph of the national 
idea in Germany and Switzerland was not the result of 
feeling, as in Italy, but of the overwhelming pressure of 
material interests. From this point of view, any indication in 
the United States, that the divergence of state legislations is 
causing people to look to the federal government for relief, 
becomes of extreme importance. Any proposals to enlarge 
the legislative powers of Congress by constitutional amend- 


State Statute and Common Law 107 


ment or change of constitutional interpretation, however 
sporadic they may be, are symptoms not to be slighted. The 
divergence of our state laws is causing most trouble, as we 
have seen, in the matters of marriage and divorce, and of 
commercial paper. Here, then, we should look for symp- 
toms of an appeal.to federal legislation; and here we find 
such symptoms. 

The agitation for more uniform laws of marriage and 
divorce sometimes culminates in the demand that some 
association or committee of right-thinking and zealous 
citizens shall frame such uniform laws, and that sufficient 
pressure to compel their passage shall be brought to bear 
upon the several state legislatures. But if uniform laws 
are desirable, and if the state legislatures, in order that the 
laws may be uniform, are to be reduced to the position of 
assenting bodies simply, there seems no reason why their 
assent should be sought at all, or why the uniform laws 
Should be framed by an irresponsible committee of re- 
formers rather than by the elected representatives of the 
nation. Accordingly, the more radical demand is heard 
with increasing frequency —the demand for a constitu- 
tional amendment which shall give Congress complete and 
exclusive control of marriage and divorce. ‘That so con- 
servative a newspaper as The (New York) Sun favors this 
solution, is an excellent illustration of the pliancy of polit- 
ical theories under the pressure of social needs. 

The conflict of state laws concerning commercial paper, 
and the annoyances and losses suffered in consequence by 
the business men of the country, have occasioned much 
discussion, as has been remarked already, at the annual 
conventions of the American Bankers’ Association. Here 
again we find that Congress is to give relief; and that Con- 
gress is to be enabled to give relief by a more liberal in- 
terpretation of the constitution. In 1882 the convention 
passed the following resolutions: 


That the executive committee be directed to ascertain: 
(1) The laws in the several states in regard to commercial 


108 State Statute and Common Law 


paper, and especially the variations and differences therein. 
(2) Whether, under the constitutional power given to Con- 
gress to “regulate commerce between the several states,” 
it is not competent for Congress to enact laws governing 
commercial paper drawn in one state upon a party in an- 
other, or made in one state and payable in another, so that 
such laws shall be uniform throughout the nation. (3) 
Whether it be expedient for Congress to exercise such power 
if the constitution confers it. 


It is an interesting fact that Hamilton thought that this 
clause of the constitution would cover such legislation.* 
The Supreme Court has construed the word “ commerce ” 
more narrowly; but if such a law as the above resolution 
contemplates were actually passed by Congress, in re- 
sponse to an urgent popular demand, it is not inconceivable 
that it might be pronounced constitutional. 

Whether it be by change of constitutional interpretation 
or by direct constitutional amendment, there is no doubt, 
I think, that the nation will find a way to keep its law 
national. No theory of state rights, no jealousy or fear of 
centralization, will prevent so practical a people as ours 
from satisfying its real needs. If the encroachment of state 
statutes upon common law goes much further, if business 
relations become as uncertain and confused as marriage re- 
lations have become already, the state-rights theory will 
either disappear or, more probably, change its form. Like 
all political theories, it has a kernel of truth and expresses 
a real social interest. In administrative matters, the great- 
est practical development of local self-rule is not only de- 
sirable, but essential to the perpetuity of free government. 
This will be seen more clearly as our governmental prob- 
lems become more complex and difficult; and the tendency 
to decentralize administration will probably result in an in- 
creased autonomy of our cities and counties. But it will 


46 Works, Lodge’s edition, vol. ill, p. 204. 


State Statute and Common Law 109 


be seen, also, that the making of laws concerning matters of 
national interest is no legitimate function of local govern- 
ment, and that an American citizen is no freer because these 
laws are made at Albany or Trenton than he would be were 
they made at Washington. 


IV 
FOUR GERMAN JURISTS.* 
BruNS, WINDSCHEI, JHERING, GNEIST.” 


Or the jurists under whose personal influence it was my 
good fortune to be brought during my studies in Germany, 
four of the most distinguished have since passed away: 
Bruns in 1880, Windscheid and Jhering in 1892, and Gneist 
during the past summer. To each of these men I owe debts 
of the kind that cannot be repaid; and the impulse to de- 
scribe, however inadequately, their lives and labors springs 
partly from the feeling that a tribute to the memory of these 


1 Reprinted from the Political Science Quarterly, vol. x, no. 4, De- 
cember, 1895, pp. 664-692; vol. xi, no. 2, June, 1896, pp. 278-309; vol. xii, 
no. 1, March, 1897, pp. 21-62; vol. xvi, no. 4, December, 1901, pp. 641-679. 

2 Karl Georg Bruns was born at Helmstedt, in Brunswick, February 
24, 1816; studied law at Gottingen, Heidelberg and Tibingen; practised 
for a short time in Brunswick; began to teach at Tiibingen in 1839; was 
advanced to the grade of extraordinary professor in 1844; accepted a call 
to Rostock as ordinary professor in 1849; went to Halle in 1851; to Tubingen 
again in 1859; to Berlin in 1861, where he remained until his death, Decem- 
ber 10, 1880. His published works were: Das Recht des Besitzes im Mit- 
telalter und in der Gegenwart (1848). Fontes iuris Romani antiqui (1860; 
5th ed. by Mommsen, 1887). Das Wesen der bona fides bei der Ersitzung 
(1872). Die Besitzklagen des romischen und heutigen Rechts (1874). 
Die Unterschriften in romischen Rechtsurkunden (1876). Syrisch-ROmisches 
Rechtsbuch aus dem sten Jahrhundert (1880). To Holtzendorff’s Rechts- 
encyclopddie he contributed the important articles on the history of the 
Roman law and on modern Roman law. Two volumes of essays (Kleinere 
Schriften) were collected in 1882. A sketch of his life and work was pub- 
lished by Degenkolb in 1881. 

Rudolf von Jhering was born at Aurich, in East Frisia, August 22, 
1818; studied law at Heidelberg, Munich, Gottingen and Berlin; began to 
teach at Berlin in 1843; accepted calls, as ordinary professor, to Basel, 
1845; Rostock, 1846; Kiel, 1849; Giessen, 1852; Vienna, 1868; Gottingen, 
1872. Here he remained, declining calls to larger universities, until his 
death, September 17, 1892. He was ennobled by the Emperor of Austria. 
His published works were: Abhandlungen aus dem romischen Recht (1844). 
Civilrechtsfaille ohne Entscheidungen (1847; 6th ed., 1892). Geist des 
romischen Rechts auf den verschiedenen Stufen seiner Entwickelung (4 
vols., 1852-1865; 4th and sth eds., 1878-1891). Das Schuldmoment im 
romischen Privatrecht (1867). Ueber den Grund des Besitzesschutzes (1868; 
2d ed., 1869). Die Jurisprudenz des tdglichen Lebens (1870; oth ed., 
1893). Der Kampf ums Recht (1872; 10th ed., 1891). Der Zweck im 
Recht (2 vols., 1877-1883; 3d ed., 1893). Vermischte Schriften juristischen 


Four German Jurists OB ef 


great teachers from some one of their American pupils is a 
duty of scholastic piety. But I am also influenced by the 
conviction that such a description will be of interest and 
value to the readers of this review. The life-work of these 
scholars cannot be set forth on purely biographical lines: 
to study it involves a study of the movement of German 
jurisprudence in the nineteenth century. To understand 


Inhalits (1879). Gesammelte Aufsdtze (3 vols., 1881-1886). Das Trink- 
geld 1882; 3d ed., 1889). Scherz und Ernst in der Jurisprudenz (1885; 
4th ed., 1892). Der Besitzwille: Zugleich eine Kritik der herrschenden 
juristischen Methode (1889). From his literary remains: Vorgeschichte 
der Indo-Europder (1894). Entwickelungsgeschichte des romischen Rechts: 
Einleitung (1894). Sketches of his life and character by de Jonge (1888) 
and Merkel in Jahrbiicher fiir Dogmatik, vol. xxxii (1893). 

Bernhard Josef Hubert Windscheid was born at Diisseldorf, June 26, 
1817; studied law at Bonn and Berlin; was employed in the judicial ser- 
vice 1837-1840; began to teach at Bonn in i840; was appointed extra- 
ordinary professor in 1847; accepted a call to Basel the same year as or- 
dinary professor; went to Greifswald in 1852; to Munich in 1857; to 
Heidelberg in 1871; to Leipzig in 1874. Further calls to Strasburg, Vienna 
and Berlin were declined. From 1874 to 1883 he was a member of the 
commission appointed by the German Federal Council to draft a civil code 
for the Empire. He died October 26, 1892. His publications were: Die 
Lehre des romischen Rechts von der Voraussetzung (1850). Die Actio des 
romischen Civilrechts (1856). Lehrbuch des Pandektenrechts (3 vols., 
1862-1867; 6th ed., 1887). Wille und Willenserkldrung (1878). Zwei 
Fragen aus der Lehre der Verpflichtung wegen ungerechtfertigter Berei- 
cherung (1878). 

Rudolf von Gneist was born at Berlin, August 13, 1816; studied law 
at Berlin; entered the Prussian judicial service and was advanced, in 1841, 
to the position of assistant judge; resigned, on political grounds, in 1850; 
Was appointed, in 1875, a member of the superior administrative court 
(Oberverwaltungsgericht) of Prussia.—In 1848 and 1849 he was a mem- 
ber of the city council of Berlin; in 1858 he was elected to the Prussian 
Diet, and was reélected with unfailing regularity until his withdrawal, a 
few years ago, from active political life. From 1867 to 1884 he was a 
member of the Imperial Diet also. In 1883 he was appointed a member 
of the Prussian Council of State. He was ennobled by the Emperor Fred- 
erick III. — His academic career began, at Berlin, in 1839; he was appointed 
extraordinary professor in 1844; ordinary professor in 1858; and retained 
this position until his death, July 22, 1895. Among his more important 
publications were: Die formellen Vertrage des neuern romischen Obliga- 
tionenrechts (1845). Adel und Ritterschaft in England (1853). Das heutige 
englische Verfassungs- und Verwaltungsrecht (1857-1863; 3d ed. of Part 
I under the title Das englische Verwaltungsrecht der Gegenwart, 2 vols., 
1883-1884; 3d ed. of Part II under the title Selfgovernment, Kommunal- 
verfassung und Verwaltungsgerichte in England, 1871). Verwaltung, Justiz, 
Rechtsweg, Staatsverwaltung und Selbstverwaltung nach englischen und 
deutschen Verhdltnissen (1869). Die preussische Kreisordnung (1870). 
Der Rechtsstaat (1872; 2d ed., 1879); Gesetz und Budget (Berlin, 1879) ; 
Englische Verfassungsgeschichte (Berlin, 1882); Das englische Parlament 
(Berlin, 1886).— Monograph by Walcker, in Hinrichsen’s Deutsche Denker 
(Berlin, 1888); article by Bornhak, Archiv fiir Offentliches Recht, vol. xi, 


p. 2 (1895). 


II2 Four German Jurists 


their efforts it is necessary to consider the scientific environ- 
ment in which they grew up, the points of view which they 
inherited and retained or abandoned, the tendencies which 
they continued or opposed. To appreciate their influence 
it is equally necessary to consider the extent to which they 
furthered the development of their science upon lines al- 
ready marked out, and the degree in which, by opening 
new lines of thought and study, they have given to its 
further progress new impulses and different aims. The 
problems which have engaged the attention of German 
jurists during this century are, in large degree, universal 
problems; and the solutions which they have reached should 
be of interest to all who care for legal science. 


I 


The present period of German jurisprudence begins, as 
far as any historical period can be said to have a distinct be- 
ginning, with Savigny,® whose treatise on the Law of Pos- 
session made him famous a dozen years before Bruns (the 
eldest of our four) was born, and who closed his career as 
a teacher just as Bruns, Gneist and Windscheid were be- 
ginning theirs. Savigny was the founder of the historical 
school which is still dominant in modern legal science. 
Against the conception of “natural” law, universal in its 
dominion, eternal and unchangeable in its essence, pro- 
gressive only in the sense that a fuller recognition and more 
perfect comprehension of its principles may be progres- 
sively attained, Savigny set up the conception of law as 
an historical product of the life of each people or nation, 
varying according to the national genius, developing in each 
nation with that nation’s entire social development. A 
large portion of his life was devoted to studying the history 
of the Roman law, in both the ancient and the medizval 
world. The great monument of these investigations is his 
History of the Roman Law in the Middle Ages. 


3 Born 1779; died 1861. 


Four German Jurists r18 


In addition to these historical studies, however, Savigny 
carried on throughout his life, with rare acuteness of 
analysis, the labor of resolving the traditional institutions 
of law into their ultimate juristic elements. With this he 
combined, and with no little success, the effort to reformu- 
late and refine the synthetic conceptions with which legal 
science operates, Of these labors in systematic jurispru- 
dence the chief results were incorporated in his unfinished 
System of Modern Roman Law. 

An important impulse to the historical investigation of 
the Roman law had already been given, toward the close of 
the sixteenth century, by the French jurist Cujacius; and a 
serious attempt to establish a more logical and coherent 
system of Roman law had been made about the same time 
by his countryman Donellus. But the historical impulse 
was checked in the seventeenth and eighteenth centuries by 
the predominance of natural-law theories; and in the sys- 
tematic field the work of the great Dutch jurists on whom 
the mantle of Donellus fell was more and more directed to the 
new science of international law. In Germany, still absorbed 
in the practical labor of assimilating the “ foreign laws,” civil 
and canon, and fitting them to its own social conditions, 
neither Cujacius nor Donellus had found any important 
following, In this country the new impulses given by 
Savigny were especially needed, and the seeds sown by him 
have brought forth an abundant harvest, not in Germany 
only, but throughout the civilized world. 


II 


Every effective human impulse, however, is one-sided 
and provokes a more or less legitimate reaction. Insistence 
upon one portion of the truth tends to obscure other por- 
tions, and these find new exponents and defenders. It was 
asserted, and not without reason, that Savigny and his im- 
mediate followers regarded the evolution of law as an or- 
ganic social process upon which the individual reason and 


II4 Four German Jurists 


the individual will have little influence; that they ignored, 
or at least underrated, the conscious and reflective element 
in legal development; and they were accused, not without 
justice, of “ 
whether made by custom or by legislation, are, as Savigny 
maintained, merely the expression of slowly ripening popu- 
lar instincts, then such changes are sure to come when these 
instincts are sufficiently ripened. To hasten the process 
may be impossible; it will certainly result in mistakes. 
Such was, in fact, the feeling of Savigny, who was politically 
an extreme conservative;* and the attitude of his immedi- 
ate followers toward reformatory legislation was far from 
sympathetic. It was also asserted, and again with reason, 
that the historical jurists insisted too much upon the na- 
tional character of law and ignored its human character. 
After all, Greeks, Romans and Teutons were, in the first 
place, men with human feelings, ideas and tendencies; in 
all the systems of law that have existed or now exist, there 
is much that is common, and the common element is the 
most significant. These points of antagonism, or rather 
these supplementary considerations, gave birth to the so- 
called philosophical school or, as Thibaut, its leading 
representative, preferred to call it, the ‘‘ philosophical-histor- 
ical”? school. A characteristic controversy ° between Thi- 
baut and Savigny, in which the former advocated and the 
latter opposed the construction of a civil code for all Ger- 
many, brought out most clearly their different attitudes to- 
wards legislation. The attempt of Gans, another leader of 
the philosophical school, to trace the law of inheritance in 
its “ world-historic development,” ® marked with equal clear- 
ness the reaction against the purely national point of view. 


4 Compare with the conservatism of Savigny, the historical jurist, that 
of Burke, who regarded politics preéminently from the historical point of 
view. 

5 Thibaut, “ Ueber die Nothwendigkeit eines allgemeinen biirgerlichen 
Rechts fiir Deutschland.” Savigny, ‘Vom Beruf unserer Zeit fiir Gesetz- 
gebung und Rechtswissenschaft.” Both pamphlets appeared in 1814. 

6 Gans, Rdmisches Erbrecht in weltgeschichtlicher Entwickelung (4 
vols., 1824-1835). 


quietism”’ or fatalism. If legal changes, ~ 


a 


Four German Jurists 125 


What is the attitude of German jurists to-day toward 
these controversies? What, in particular, was the attitude 
of the jurists who form the subject of our present study? 
As regards the emphasis laid by the philosophical school 
upon the human and universal character of law, at least in 
its fundamental conceptions, Bruns has well said that this 
led to the development of a purer legal philosophy, 


which no longer regards as its task the discovery of an 
absolute law of nature, but only seeks to recognize, in their 
universality and necessity, the general conceptions and ideas 
which attain concrete historical manifestation in the single 
national systems of law." 


He might have added that the philosophical school fur- 
nished the theoretical basis for the new comparative science 
of law, which is still to-day in the earlier stages of a most 
promising‘ development. 

Jhering, who in the first book of his Spirit of Roman Law 
_made brilliant use of the comparative method, condemns, 
in his introduction to that work, the narrow national view 
taken by the historical school. “ Legal science,” he says, “‘ is 
brought down to the plane of territorial jurisprudence. The 
scientific boundaries coincide in jurisprudence with the 
political.”* After emphasizing the interdependence of na- 
tions, and pointing out that the legal development of the 
modern world, or at least of the modern European world, 
has been substantially a general and not a national move- 
ment, he writes: 


And however brief, from the point of view of the ages, is 
the fragment of history thus far unfolded in this new legal 
epoch, is it not already clear that it is the thought of uni- 
versality that gives its character and furnishes the key to the 
present era? It was with a correct instinct for this trend and 
drift of modern law that the natural-law school proclaimed 
its doctrine of the universality of law, elevated above time 

7 Bruns, “Das heutige romische Recht,” in Holtzendorff’s Rechtsen- 


cyclopddie, 3d ed. (1877), p. 336. 
8 Jhering, Geist des rémischen Rechts (3d ed., 1873), vol. i, p. 15. 


116 Four German Jurists 


and place. However little scientific value I may attribute to 
the works produced in this field, the direction which the natu- 
ral-law theorists pursued was as decidedly in line with the 
peculiar course of modern history as that of the historical 
jurists, with their one-sided insistence upon the principle of 
nationality, was divergent from it. The law of nature, far 
from standing outside of time and ignoring actual conditions, 
was in fact but an idealization of existing conditions.’ 


Gneist also declares, in one of his later monographs, that a 
further development of legal science can be attained only by 
taking up again the natural-law doctrines of the past, and 
giving them further development.*® The monograph itself is 
an interesting attempt to sketch in broad lines the develop- 
ment of human law in general and of modern European law 
in particular. 

These utterances of men who regarded themselves as fol- 
lowers of Savigny sufficiently indicate that, on this point at 
least, the antithesis of the historical and philosophical schools 
has disappeared. It is fully recognized that each was right 
in its main contention.** 

As regards the attitude of the two schools towards legis- 
lative reform, it is sufficient to point out that there is to-day 
no diversity of opinion among German jurists regarding the 
desirability of a German code; although, as was pointed out 
in a previous article of mine in this review,’* the question 
to-day is not of the superiority of legislation over usage, of 
written over unwritten law, but the preference of general 
federal law to divergent state laws. It may be added that 
nearly all modern German jurists agree with Savigny that 
Germany was not ready for codification in 1814. 


ONT DIG iD, Pits 

10 “ Pies Vorwartsschreiten- [der Wissenschaft] wird nur in der Wie- 
derankniipfung an die naturrechtlichen Lehren der Vergangenheit liegen 
konnen, und in der Weiterfiihrung derselben.” Zur Lehre vom Volksrecht, 
Gewohnheitsrecht und Juristenrecht, in Festgabe fir Beseler (1885). 

11 So Windscheid, also, in his lectures on Pandects, in 1878: ‘“ The cor- 
rectness of both sides is now fully recognized. The antithesis was long 
ago surmounted.” 

12 “State Statute and Common Law,” Political Science Quarterly, vol. 
iil, pp. 155-160 (March, 1888). 


ee i i a 


Four German Jurists Ti7 


III 


Of less interest to science at large than the philosophical 
reaction, but of more practical consequence to Germany, was 
the “national” opposition. Savigny and his disciples were 
attacked by the nationalists not as historical jurists — for. 
the armory of historical jurisprudence furnished the assail- 
ants with their best weapons —but as “ Romanists,” as 
champions of the Roman law and advocates of its continued 
supremacy in Germany. The attack came from the “ Ger- 
manists,” the defenders of Teutonic ideas and institutions. 

In the sixteenth century, at the period of the completed 
reception of the Justinianean codes, and for some two cen- 
turies afterwards, there were no Germanists in Germany — 
at least among the jurists. The only protests against the 
overwhelming triumph of the Roman law, and against the 
partial destruction of German legal institutions, came from 
laymen — knights and peasants. The jurists had all been 
trained in the Roman law, first in Italy and later in the Ger- 
man universities. They were carried away by its cosmopoli- 
tan breadth of spirit, its logical symmetry, and above all, by 
the fact that it furnished ready solution for all the new prob- 
lems with which German folk-law was clumsily wrestling. 
To them the native Germanic customs were barbarous and 
irrational, things in which no intelligent man could take an 
interest. To their attitude was due not the fact of the “ re- 
ception,” ** but its completeness. In theory, the Roman law 


13 The prime cause of the reception, not in Germany alone, but through- 
out Europe, was the change in economic conditions which followed the 
revival of commerce in the eleventh and twelfth centuries. Social life be- 
came more complex, and the simple customs by which the greater part of 
Europe was governed became inadequate. One of the first results of the 
commercial revival was the extension of the mercantile law of the Eastern 
Mediterranean, which was largely Roman or Graeco-Roman in its structure, 
over the new highways of trade—along the coasts of the West Atlantic 
and of the North and Baltic Seas, and along the great land routes between 
these seas and the Mediterranean. (Cf. Goldschmidt, System des Hand- 
elsrechts, vol. i.) This body of law, however, was applicable only to traders 
and to distinctly mercantile transactions. For the rest of the people new 
law was needed, and the law books of Justinian amply met the need. Where 
the Roman law was theoretically in force already (e.g., in South France) 
such rude compilations as the ‘“‘ Breviary of Alaric”’ were supplanted by the 
“ Corpus Iuris Civilis.” In other parts of Europe a true “ reception ” of the 


118 Four German Jurists 


was received as subsidiary law, to be applied only when the 
local law furnished no rule. But the jurists recognized Ger- 
man law only in the form of local custom, and insisted that 
every such custom was a fact to be pleaded and proved by 
the party who desired its application. When it is remem- 
bered that questions of fact, as well as questions of law, were 
decided by the learned judges, themselves doctors of the civil 
law, the effect of the procedural rule just stated can easily be 
imagined. In all parts of Germany the German law was 
more or less submerged and lost; more in the South and West, 
less in the North and North-East.” 


Roman law occurred. In those countries which were not at first touched by 
the revival of trade, and where simple economic conditions continued to pre- 
vail (e.g., in the old cantons of the Swiss Confederacy), the Roman law was 
not received. 

A negative condition of the reception was the inability of the medieval 
state to furnish the new law that was needed. Feudalism had so disintegrated 
political authority that in most parts of Europe there were no organs for 
the development of national law, whether by legislation or by decisions on 
appeal. Recourse was therefore had to the older laws of the Roman Em- 
pire. Their application was facilitated (not caused) by the general belief 
that all authority in Europe was ultimately derived from the Roman Empire, 
and that the Roman Emperors, from Augustus down, were the predecessors 
of all medieval rulers. Where this condition of political disintegration 
did not exist, neither economic changes nor the fiction of ‘‘ continuous 
empire”? was strong enough to secure the reception of the Roman law. 
In England, where the Norman conquest had so solidified the state 
that the King in Parliament could enact statutes for the realm, and the 
King’s courts could develop the lex terrae by their decisions, the new law 
required was worked out on the basis of existing Anglo-Norman customs. 
In Spain, where the struggles with the Moors had strengthened royal 
authority, the reception of the Justinianean law books was averted by the 
publication of a Spanish code, largely influenced by Roman ideas, but still 
an independent and national system of law. In North France, where in 
the fourteenth century the royal power was so far increased that procedure 
could be reformed by royal ordinances, and appeals carried to the King’s 
courts, the Roman law was not received as law but was invoked simply as 
ratio scripta when the customs were silent. Here, as in England, the basis 
of the legal development remained Teutonic. : 

In Germany and in the Netherlands the “ practical,” as distinguished 
from the “scientific”? or theoretical reception of Roman law, was generally 
synchronous with the appearance of the “learned judiciary,” z.e., with the 
substitution of governmental justice administered by professional lawyers 
for popular justice administered by lay judges. The conviction that Roman 
law was applicable and authoritative, and the attempt to apply it, of course 
hastened this change, and the control of the courts by men trained in the 
civil law was the decisive element in the practical reception. 

14 In the Saxon lands much of the Teutonic custom was preserved 
through a private compilation which obtained great authority, the Sachsen- 
spiegel. A somewhat similar compilation existed in South Germany, the 
Schwabenspiegel. 


Four German Jurists IIQ 


Not a few Teutonic ideas and institutions, however, were 
preserved by putting them, so to speak, into togas and teach- 
ing them to talk Latin. They found shelter and recognition 
in the so-called novus usus pandectarum, a collective desig- 
nation of the changes wrought in the Roman civil law by 
medizval practice. Some of these disguised natives of Ger- 
many crossed the Alps in the very van of the Roman inva- 
sion. They had already received Roman citizenship in the 
Italian courts. Still others came over in sacerdotal vest- 
ments. They had been naturalized at an even earlier period 
in Rome itself, and figured as canons of Holy Church.** After 
the reception of the foreign laws, and largely in consequence 
of a popular reaction against them, still other fragments of 
Teutonic law were preserved in official compilations of 
“statutes ”’ or local rules of law. 

That any community of origin existed between those rules 
of German law which had found shelter in the canon law, or 
in the new usage of the Pandects, and which were, therefore, 
common law, and those other rules which had survived the 
reception as local customs or statutes, was not generally 
understood until the present century. Not until the eight- 
eenth century were even the various local customs recognized 
as fragments of an earlier whole.*® It was through the labors 
of Carl Friedrich Eichhorn,‘ a contemporary and friend of 
Savigny, that German law was raised to the rank of an inde- 


15 In Germany, as in Italy, the canon law overrode the civil when the 
two came in conflict. 

16 In 1643 one Herman Conring, a physician, published a treatise, ‘‘ De 
Origine Iuris Germanici,” in which the results of later historical investiga- 
tion were largely anticipated. Curiously enough the treatise was called forth 
by a current theological controversy. The jurists paid no attention to 
Conring’s work. In the eighteenth century the common origin of the vari- 
ous local customs was discovered by members of the legal profession, and 
lectures on German law began to be delivered in the universities. This 
innovation was at first regarded with little favor. The Prussian Chancel- 
lor Cocceji, having been charged by Frederick William I with the prepara- 
tion of a general civil code, submitted for the King’s approval, in 1738, 
a preliminary report concerning the scope and plan of the proposed codifi- 
cation. In this report the chancellor went out of his way to express his con- 
tempt for that “imaginary German law which sundry tutors (Privat- 
Doctores) have taken the liberty to invent.” His code was to be based 
on natural reason. When drafted it turned out to be substantially Roman. 

17 Born 1781; died 1854. His great work was his Deutsche Staats- 
und Rechts-geschichte (1808; 5th ed., 1842-1844). 


120 Four German Jurists 


pendent juristic discipline. For many years now the Ger- 
manists have occupied in every university a position fully 
coordinate with that of the Romanists or Pandectists, and an 
acquaintance with the history and institutes of German law 
is as necessary for university degrees and bar examinations 
as is a knowledge of the Roman law.** 

Between the leaders of the two schools, the Romanistic and 
the Germanistic, there was no controversy. Savigny himself, 
in pleading against immediate codification, had insisted that 
the different elements of which the existing law of Germany 
was composed were still imperfectly comprehended, and had 
urged a thorough historical study of Roman and of German > 
law; and Savigny and Eichhorn cooperated in establishing 
the Zeitschrift fur geschichtliche Rechtswissenschaft, which 
from the outset gave impartial shelter to the fruits of in- 
vestigation in both fields. But the younger Germanists, with 
the heat that naturally resulted from their struggle for aca- 
demic equality, opened an attack upon the Roman law. They 
disputed the rightfulness of its supremacy. ‘They denied 
that it had any legitimate place in Germany. Savigny’s 
theory of the national character of law gave them an admi- 
rable opening. He had declared, in the introductory article 
of the first number of the Zeitschrift, that the law of a nation 
was the product “‘ of its innermost nature and its history.” 
‘“‘ Tf this be true,” said the Germanists, “‘ what justification 
was there for the reception of the Roman law in the fifteenth 
and sixteenth centuries? What justification is there for its 
continued supremacy? Ought it not to be thrust out as an 
illegitimate interloper, and should not the teachers of the his- 
torical school be the first to demand its exile?” Savigny, of 
course, had an answer. In the evolution of every national 
law there comes a period when it ceases to be the direct and 
immediate product of the national consciousness. Its further 
development falls into the hands of a class, the lawyers, and 

18 At least, in theory. Practically, the time devoted by the German 
law-students to Roman law is at least thrice that given to the German 


law, and the relative stress laid upon these subjects in the examinations 
is roughly in the same proportion. 


Four German Jurists 121 


ultimately into the hands of legislators. At the time of the 
reception the jurists represented the German people, and 
their reception of Roman law made it German law. To this 
the Germanists responded that the legal profession might, 
indeed, represent a nation, as was the case in the develop- 
ment of the ancient Roman law, but that the German jurists 
of the fifteenth and sixteenth centuries had divested them- 
selves of all national feeling and were no true representatives 
of Germany. 

The national agitation against the Roman law reached its 
highest point in the forties.” The events of 1848 raised new 
questions, political rather than juristic in character, and the 
discussion between the Romanists and the Germanists termi- 
nated in apparent agreement. It was generally admitted by 
the Romanists that the way in which the Roman law had 
been received was unfortunate; that the overturning of es- 
tablished German customs was indefensible. It was con- 
ceded by the Germanists, on the other hand, that the recep- 
tion of the Roman law was not on the whole a misfortune; 
that the appropriation of this portion of the vast inheritance 
of the ancient world had greatly enriched modern European 
civilization. 

Jhering justifies the reception of the Roman law in Ger- 
many on the broad ground that no nation can attain the high- 
est civilization save by participation in the civilization of the 
world. 


The life of nations is no isolated existence side by side, but, 
like that of individuals in the state, a common life; a system 
of reciprocal contact and influence, peaceful and hostile; a 
giving and taking, borrowing and bestowing; in short, a vast 
business of exchange that embraces every side of human ex- 
istence. The same law that governs the physical world exists 
for the spiritual: life is reception from without and internal 
assimilation: these are the two basic functions on whose 


19 Among the more important contributions to the controversy, on the 
Germanistic side, were: Kjerulff, Theorie des gemeinen Civilrechts (1839) ; 
Bluntschli, Die neuern Rechtschulen der deutschen Juristen (1841); Beseler, 
Volksrecht und Juristenrecht (1843). 


122 Four German Jurists 


maintenance and balance rest the existence and health of 
every living organism. To prevent reception from without 
and condemn the organism to development “ from within 
outwards,” is to kill it. That sort of development begins 
with the corpse.” 


This vast system of exchange has always included spiritual as 
well as material goods; and it is from this point of view that 
he condemns the national standpoint of the historical jurists. 


In the ship that brought wares, gods went back... . 
Language, morals, religion, words, ideas, prejudices, faith, 
superstitions, industry, art, science, —all follow the rule of 
international communication and influence. And law? Does 
that alone stand outside of this universal rule of civilization? 
That is the outcome of the doctrine we are combating, and 
which we must combat if we are to find a place for the Roman 
law, — the doctrine of the historical school that law develops 
purely from within each nation. We are not to introduce 
juries, because they did not spring up on our native soil; the 
constitutional form of government is of foreign growth, and 
therefore to be condemned. . . . The question of the re- 
ception of foreign legal institutions is not a question of na- 
tionality, but simply one of expediency, of need. No one 
will fetch a thing from abroad when he has as good or better 
at home; but only a fool will reject the bark of the cinchona 
because it did not grow in his vegetable garden.” 


A warning example of the results of national isolation is af- 
forded by China, ‘‘ the Don Quixote of the principle of na- 
tionality.” 

The special justification of the reception of the Roman law 
in medieval Europe Jhering finds in the supra-national, uni- 
versal character which the Roman law had already assumed 
in the first centuries of the Christian era, and in the similar 
character which its reception has given to modern European 
law. In this, as in other matters, Rome furnishes the point 
of communication between the ancient and the modern world; 


20 Geist des romischen Rechts, 3d ed., vol. i, pp. 5, 6. 
21 Geist des romischen Rechts, 3d ed., vol. i, pp. 8, 9. 


Four German Jurists 123 


and here, as always, Rome stands for the principle of univer- 
sality as against that of nationality. No one who has read 
the Spirit of the Roman Law can forget the striking sentences 
with which the book opens. 


Thrice has Rome dictated laws to the world, thrice bound 
the nations together in unity: the first time, while the Roman 
people still stood in the fullness of its power, in the unity of 
the state; the second time, when that people had already 
perished, in the unity of the church; the third time, in conse- 
quence of the reception of the Roman law in the middle ages, 
in the unity of law; the first time by external coercion, by 
force of arms; the second and third times by force of in- 
tellect. 


Windscheid goes a step further towards the Germanists. 
He remarks that Jhering’s theories of international exchange 
and of the supra-national element in law, particularly in the 
Roman law, are “ certainly true. But it does not follow that 
the peculiar genius of each nation should not in last instance 


determine whether any thing is or is not properly its law.” *° 


Bruns also emphasizes the universal side of the Roman 
law, and seeks to define it. 


The significance of the Roman law in the history of the 
world lies chiefly in the fact that in it was developed the ab- 
stract conception of the personal right (des subjektiven 
Rechts), and especially the general and equal attribution to 
individuals of private-law rights. Herein lies what is called 
the universal character of the Roman law. This does not 
mean that the Roman law is eternal and absolute law for all 
nations and times, or that it alone can satisfy the needs of 
any modern nation, but that in it an essential and general ele- 
ment of law, which must find place in (and, in a sense, form 
the basis of) every system of law, was worked out in so com- 
plete a way as to furnish all nations and times with a model 
of theoretical and practical value.” 


22 Windscheid, Pandekten, § 10, note 4. 
23 Bruns, “ Geschichte des rémischen Rechts,” in Holtzendorff’s Recht- 
sencyclopddie, 3d ed., p. 81. 


124 Four German Jurists 


He emphasizes, as does Jhering,”* the new touch of univer- 
sality which the Roman law gained by its reception in the 
middle ages. 


We must guard ourselves carefully against the notion that 
what is called modern Roman law is simply that part of the 
Roman law that is still in force to-day. In modern Roman 
law are embodied the labor, intellectual development and 
science of all modern Europe. Modern Roman law is by no 
means the actual law of Rome. Its substance from begin- 
ning to end is permeated with modern ideas. Its entire form 
is, in even higher degree, an essentially modern creation of 
the modern mind, in which nearly all nations have par- 
ticipated.” 


As to the practical inferences, also, to be drawn from these 
considerations the jurists have reached substantial agree- 
ment. That which is really universal in the Roman law is to 
be retained and developed; that which is based upon condi- 
tions peculiar to the ancient world, or upon ideas of justice 
and expediency that were specifically Roman, is to be re- 
jected. Jhering puts all this in a single phrase which has be- 
come famous: “‘ Through the Roman law, but beyond and 
above it.’ *° 

With these declarations of the Romanists the Germanists 
seemed satisfied. Their own utterances were not dissimilar. 
But the apparent agreement was largely due to the accept- 
ance of a common formula which each party could interpret 
and apply as it saw fit. How much of the ancient Roman 
law was really universal and how much temporary and na- 
tional? How far did the practice of the medizval Italian 
and German courts eliminate the antiquated and foreign ele- 
ments? How far had institutions originally foreign to Ger- 
man instincts become German by adoption? ‘These are ques- 
tions upon which differences of opinion are perfectly natural; 
and given an academic system under which a large number 

24 Geist des romischen Rechts, vol. i, pp. 10, II. 

25 Bruns, “‘ Das heutige romische Recht,” in Holtzendorff, p. 33 


4. 
26 “ Durch das rémische Recht, aber iiber dasselbe hinaus.” Geist des 
romischen Rechts, vol. i, p. 14. 


Four German Jurists 125 


of jurists devote their entire time to studying and teaching 
the Roman law, while another considerable body is wholly 
immersed in early Teutonic customs and recent German legis- 
lation, such differences were certain. But for forty years 
Germanists and Romanists lived together in peace, or armed 
neutrality; taught as they thought, and left it to the students 
to reconcile or choose between their opposite opinions. The 
publication of the Imperial draft code in 1888 opened the 
sluice-gates of the academic reservoirs, and in the flood 
of controversial literature that at once burst forth, the degree 
of divergence between Romanistic and Germanistic opinions 
is Strikingly disclosed. Not a few of the Romanists are dis- 
turbed by the number of uncouth Gothic details that figure 
in the plans of this new temple of justice, and have hastened 
to plead for a stricter adherence to classical lines. But their 
mild protests are drowned in the cries of wrath that issue 


from the Germanistic camp. “ Doctrinaire devotion to 
scholastic concepts,” ‘‘ contempt for German law and for the 
popular consciousness of right,’ — these phrases will serve, 


without further extracts, to show what passions have been 
slumbering through the forty years’ truce. 

_But this revival of the old controversy runs beyond the 
limits of our present theme, for our four jurists took no part 
in it. Bruns was already dead; Windscheid was restrained 
from entering into any discussion of the code by the fact that 
he had been one of the commission of codification; Gneist 
had long devoted himself entirely to public law and stood 
aloof from purely private-law controversies. Jhering indeed 
published a criticism of the code,’* but his objections had 
little to do with the national controversy. 


IV 


The attempt to codify the private law of the empire has 
given practical importance to-day to the disputes of the Ger- 
27 A catalogue of this literature, published by Puttkammer and Muhl- 


brecht in 1892, contains some six hundred titles. 
28 Besitzwille, pp. 470-534. 


126 Four German Jurists 


manists and the Romanists; the codifiers have been obliged 
to choose or compromise in numberless cases between op- 
posed views of legal relations; but it may well seem as if the 
controversy that raged fifty years ago, when no general codi- 
fication was in sight, was purely academic. This was not the 
case. The Germanists had a practical grievance against 
Savigny and his school. The historical researches prose- 
cuted by the latter had clearly shown that the Roman law, as 
applied by the German courts, was in many respects a dif- 
ferent thing from the Roman law of the Digest. Starting 
with the theses that it was Roman law that had been received 
and that the authentic exposition of the Roman law was to 
be found in the law books of Justinian, Savigny and his fol- 
lowers were disposed to treat the modifications introduced 
by medieval practice as aberrations, and the influence of the 
school was thrown in favor of a reversion to the law of the 
Digest. Their arguments actually changed * in many re- 
spects the practice of the German courts in the common-law 
territories, z.e., in those parts of Germany where the Roman 
law had not been superseded by modern codes. Savigny and 
his disciples were therefore accused of having added a fresh 
injury to the original wrong of the reception by Ee 
the reception. 

29 This partial revolution of judicial practice was made possible by the 
attitude of continental European theory towards judicial practice. The 
German jurists, like the French, almost uniformly deny that decisions make 
law. In view of the historical facts their attitude seems inexplicable. They 
teach that the Roman law was largely deveioped by “ interpretation ” ; 
that old German law was developing along the same lines when its growth 
was arrested, first by feudal disintegration of judicial authority and then 
by the reception of the foreign laws; that the practical reception of the 
Justinianean law was accomplished through its acceptance by the “learned 
judiciary ” ; that the Roman law was received as modified by Italian prac- 
tice, and that it was subjected to further modifications in the German prac- 
tice, and yet they do not concede that judicial custom, as such, is law. 
They go no further than to admit that the practice of the courts may in 
some mysterious way be transmuted_into customary law —or rather, that 
it might be and perhaps was so transmuted in the middle ages, although 
the process is no longer possible to-day. The leading Germanist of the 
present day, Brunner, sees and expresses this point clearly. He writes: 
““Romanistic theory and practice are still in large degree unable to grasp 
the indubitable truth that the results of the practical reception, even where 
they rest upon a misunderstanding of the sources of the Roman law, ex- 


clude the application of pure Roman law.” —“ Quellen und Geschichte 
des rdmischen Rechts,” in Holizendorf (5th ed., 1890) p. 293. 


Four German Jurists 127 


Here again, since 1848, the Romanists have, to some ex- 
tent, seen the error of their ways and drawn nearer to the 
Germanists. Medizval modifications of the Roman law are 
no longer dismissed as mistakes due to ignorance. It is 
recognized that, in many instances, they represent the 
further development of progressive tendencies revealed in the 
later Roman jurisprudence and legislation; in other in- 
stances, the adaptation of the Roman law to different social 
and economic conditions; and, in many cases, the acceptance 
of legitimate or at least defensible Teutonic points of view. 
The change in the Romanistic attitude was, in no slight de- 
gree, the work of Bruns. He was one of the first to make a 
serious study of medizval theory and practice in a special 
field.*° He selected that field in which Savigny had begun 
his crusade for pure Roman law — possession. Bruns’s Law 
of Possession in the Middle Ages and the Present Time, pub- 
lished in 1848, was not merely a finished presentation of the 
results of careful research and an important contribution to 
legal history: it was an explanation and, in some degree, a 
justification of the changes introduced by the medizval 
jurists. Bruns himself, in this as in his subsequent writings 
on possession, remained, in principle, an adherent of the 
Roman theory as reformulated by Savigny, — the theory 
that finds the characteristic element of juristic possession in 
the intention (animus) of the possessor, — and he exhibited 
little sympathy for such changes in the law as seemed to him 
irreconcilable with this theory. The same may be said of 
Windscheid.** Jhering, however, in his last important work, 
Possessory Intention, not only gives a sweeping endorsement 
to nearly all the changes introduced by medizval courts and 
modern legislators, but carries his assault upon the Roman- 
istic doctrine back of Savigny. He finds the first false step, 
to which all subsequent aberrations are due, in a bad reason 
given by Paulus for a correct statement of positive law.** 

30 Savigny’s History of the Roman Law in the Middle Ages is rather 
a history of the civil law as an entirety, with especial reference to its literary 


treatment, than a study of the development of single legal institutions. 
81 Pandekten, § 162. 82 Besitzwille, pp. 269-300; 457 et seq. 


128 Four German Jurists 


Another valuable bit of research in medizval legal history 
is Bruns’s study of the presumption of death in case of dis- 
appearance, in which he shows how German custom, modified 
by a verse from the Psalms and a dictum from the Digest 
regarding usufruct, produced the rules which have found 
their way into the principal modern codes.** The chief im- 
portance of these investigations, and of other similar studies 
to which they furnished an incentive, lies in the fact that 
medizval legal development was no longer treated with con- 
tempt, but was taken seriously and examined critically. 


Vv 


We have thus far confined our attention to the contro- 
versies aroused by Savigny’s historical theory and by the 
work of the historical school in the Romanistic field. We 
have now to note the results of the impulse which he gave in 
the domain of systematic jurisprudence. Briefly stated, 
these results were, in the first place, a tendency to excessive 
generalization, a gradual and unconscious transfer of juristic 
labor from the field of legal science proper to that of legal 
philosophy; and then a reaction towards a more practical 
jurisprudence. Jhering was the leader of this reaction. 

The power of generalization which the Germans possess in 
so high a degree is perhaps the chief factor in their scientific 
triumphs. Patient research furnishes the material with 
which science deals, but to make anything of this material it 
is necessary to discover the principles which underlie and ex- 
plain — or at least serve to correlate — the facts. But every 
marked power carries with it the risk of abuse. Not only 
does the love of generalization easily lead to useless abstrac- 
tion; it is attended by other and more serious perils. There 
is the danger of forgetting that the so-called principles of a 
science are really working hypotheses; that they have been 
obtained by induction and are to be tested in their applica- 
tion. There is the impulse to wrest evidence to their support 


83 Jahrbuch des gemeinen Rechts, vol. i, p. 5 (1857). 


Four German Jurists 129 


and to ignore or evade such facts as prove intractable. There 
is even, with minds of a certain sort, a tendency to ascribe to 
accepted principles a character of finality — a truth superior 
to the apparent truth of mere facts. The more abstract the 
generalizations, the greater is the harm which such tendencies 
may entail. 

Savigny’s own systematic work was not wholly free from 
these faults, but in his case they were checked by a strong 
sense of the practical. He was fundamentally more lawyer 
than philosopher. Among his followers, however, some of 
whom were obviously intended by nature for philosophers 
rather than for lawyers, the tendency to excessive abstraction 
and to undue valuation of its results ran riot. Puchta ** in 
particular, the leading Romanist of the middle period be- 
tween Savigny and the contemporaries of Jhering, carried 
idealistic jurisprudence to a point not before attained and 
hardly exceeded since. To Jhering, in the earlier period of 
his revolt, Puchta seemed the incarnation of the tendencies 
against which he had declared war. At a later period he 
carried the attack further back and directed it against 
Savigny, and ultimately, as we have seen, against Paulus. 
Even then, however, he remained so far true to his first scien- 
tific enmity that he could find nothing worse to say of the 
Roman judge and jurist than to term him “ the Puchta of the 
ancient world.” He finds in both 


the same fanaticism of juristic construction, which in its zeal 
overlooks the yawning gaps between the points of view 
adopted and the existing law; . . . the same blind adher- 
ence to legal logic, which infers outright that whatever does 
not suit it is impossible and whatever does is necessary; . . . 
the same intolerance of the views of others, and even of the 
rules laid down by the legislator, when they do not coincide 
with the concepts which these two jurists have arranged to 
their own satisfaction. Intellects, both of them, above the 
common stature; but violent, scientifically despotic natures, 
implacable doctrinaires.*° 


34 Born 1798, died 1846. 85 Jhering, Besitzwille, pp. 283, 284. 


130 Four German Jurists 


In their definitions and statements of principles, as in their 
whole theoretic construction of the law, Puchta and his fol- 
lowers abandoned to a large extent the method of independ- 
ent induction from purely juristic data, and took their 
concepts ready-made from the professional philosophers, 
especially from Hegel. The philosophy of Hegel has influ- 
enced German jurisprudence in various ways. It helped to 
produce the “ philosophical’ reaction against the national 
theory of legal development.*° It has also helped to give Ger- 
man legal theory an individualistic character. Hegel re- 
garded law as a means for the attainment of true liberty; he 
described the evolution of law as “ the development of the 
idea of freedom”; and he found the essence of individual 
freedom in the rational freedom of the individual will. 

In pronouncing law to be more a system of liberty than a 
system of restraint, in emphasizing the element of freedom 
rather than the element of coercion, Hegel was perhaps influ- 
enced by the form in which the Roman law has come into the 
modern world. The only portion of that law which has sur- 
vived and continued to influence European civilization is the 
portion which deals with private relations and in particular 
that which governs property relations. The constitutional, 
the administrative, and the criminal law of the Roman Em- 
pire are as dead as Julius Cesar; the Roman private law is 
a living force. In every system of -private law there is a 
wide range of individual autonomy — the state reaches its 
ends in private law through liberty as distinctly as in crim- 
inal law it reaches those ends through restraint — and in no 
system of private law is the field of individual freedom more 
generously measured than in the Roman. Add to this the 
fact that the Roman law —z.e., the Roman private law — 
has been for centuries the general law of Europe, as com- 
pared with which all other law has seemed a mass of local 
and special rules, and the influence which the private-law 
point of view has exercised upon European thought in gen- 


86 Gans, the champion of the universal or cosmopolitan point of view, 
was a disciple of Hegel and edited Hegel’s Philosophy of History. 


. 


Four German Jurists 131 


eral, and which it may have exercised upon that of Hegel in 
particular, becomes sufficiently intelligible. These facts 
again explain the readiness with which the German jurists, 
especially those of the Romanistic school, have accepted 
Hegel’s one-sided view of law.*’ Lawyers everywhere are 
apt to regard private law as the law, and the Romanist has 
a better excuse for this tendency than has the English lawyer. 

Hegel’s position that legal liberty is freedom of will rather 
than freedom of action or conduct has also some apparent 
basis in the Roman law. The Roman jurists laid much stress 
upon animus, voluntas, etc. ‘There is, to be sure, nothing to 
show that the Roman jurists: ever thought of will or inten- 
tion as obtaining legal significance otherwise than through its 
revelation in word or deed; there is, in fact, evidence that 
the intention which a man’s language or conduct would natu- 
rally suggest to others seemed to them much more important 
than his real intention; but their curt designation of the ex- 
pressed will and the indicated intention as will and intention 
simply, and the importance which they ascribed to the indi- 
vidual will in determining legal relations, lend color to 
Hegel’s assumption. The real explanation, however, of his 
theory that freedom is freedom of will is perhaps to be sought 
in the fact that he lived under a system of government which 
tolerated relatively little freedom of conduct.*® His view of 
liberty seems as natural a product of governmental absolut- 
ism as Kant’s theory of the “ categorical imperative” in the 
field of ethics. But whatever its basis, Hegel’s theory has 


87 It may, of course, be urged that the prohibitions of the law, the re- 


- straints which it imposes, serve to protect individual liberty; but it is 


equally true that the attribution of rights to the individual operates to the 
restraint of others. In fact the two modes of regarding law are not antag- 
onistic but complementary. 

88 Perhaps, too, —since the position of a nation in the world at large 
affects the philosophy ef its members, — the weakness of Germany in con- 
sequence of its disunity had something to do with Hegel’s doctrine of liberty. 
Heine’s remark that the Frenchmen ruled the land, the Englishmen the 
sea, and the Germans the realm of dreams, seems in point. And perhaps 
Heine’s more famous saying that “the Englishman loves liberty like his 
lawful wife, the Frenchman like his mistress, and the German like his grand- 
mother,” may be construed as a satire upon the Hegelian conception of 
freedom. 


132 Four German Jurists 


had great success among German lawyers. Their definitions 
and statements of principles are almost uniformly dyed in 
the Hegelian color. Not only is a legal act —a contractual 
promise, for example, or a conveyance — “a declaration of 
will,”’ but a right is regularly described as ‘‘ a power of voli- 
tion,’”’ the protection of possession is justified on the ground 
that the law respects “ the realized will,’ — and so on in- 
definitely. 

Against these tendencies in German jurisprudence — 
against the over-valuation of abstractions in particular — 
Jhering waged incessant war for the last thirty years of his 
life. It would have been difficult to find in all Germany a 
man better fitted to champion the cause of “ practical juris- 
prudence.” He came of that Frisian stock which is still most 
closely allied, in temper as in blood, to the English; he was 
by race instinct a realist. He possessed, also, in high degree, 
the quality of mind that makes the lawyer — the power of 
brushing aside the accidents of a problem, and concentrating 
his attention upon its essence. He was a master of dialectics, 
quick to discern the weakest point in his adversary’s logic. 
He had both wit and humor, and knew how to use them; 
he could make an untenable position manifestly absurd. 
Finally, no German of our day has commanded a more bril- 
liant and persuasive style.*® Its very defects—a certain 
diffuseness, a habit of saying the same thing several times 
before the exact formulation of the thought is attained — 
have their charm; to read him is to listen to the discursive 
talk of a full and ready speaker; the personal note, which so 
strongly influences a listener, vibrates from the printed page. 
These defects, moreover,—if they be defects, —were far 
outbalanced by positive excellences. He could make the 
most abstract theme concrete, the most technical question 
interesting, by his facility of suggestive illustration; and he 


39 In recommending to us, his students, Jhering’s first book on posses- 
sion, Windscheid, who disagreed with the author’s conclusions, warned 
us that we must read the book critically, “ because everything of Jhering’s 
is written with a brilliancy (Glanz) and a power of persuasion (Ueber- 
redungskraft) that are almost irresistible.” 


Four German Jurists 3% 


had the power of making his ideas current by rounding them 
into sparkling epigrams. No legal writer of our day, not 
even Maine, has counted in his public so large a proportion 
of laymen. Nor was Jhering’s public German only; French 
and Spanish translations of his Spirit of the Roman Law, and 
French versions of several other books and pamphlets 
gave him a cosmopolitan audience. To English readers, 
unfortunately, only his Struggle for Law is accessible, 
and the translation of this pamphlet leaves much to be 
desired. 

Into his agitation against abstract jurisprudence,*° Jhering, 
by his own account, brought the zeal of a convert. He has 
more than once described his change of heart; humorously 
in the anonymous Confidential Letters ** with which he 
opened the conflict; seriously in the last part of his Jest and 
Earnest,** and in the preface to his Possessory Intention.** 


There was a time [he writes] when I accepted Puchta as 
master and model of the correct juristic method, and when I 
was so captivated by that method that I was capable of going 
beyond my model. . . . That in the legislative embodiment 
[of legal theories] any other consideration were to be re- 
garded except the desirability of a priori logical construction, 
I did not then dream; and I still remember how low an opin- 
ion I held of my friends among the practising lawyers who 
could not appreciate the coercive force of my ideas and de- 
ductions. . . . But then [about 1860] came the revulsion; 
not from within, but through external influences; through 
active intercourse with practitioners — an intercourse which 
I have always sought, cherished and turned to my advantage; 
through the occasions for practical activity on my own part 
which were afforded by appeals to the faculty ** and requests 


40 Other terms employed by Jhering are “speculative,” ‘ scholastic,” 
“ formalistic ”’ jurisprudence, and die Begriffsjurisprudenz. 

41 “ Vertrauliche Briefe tiber die heutige Jurisprudenz,” published 1860— 
1866 in the Preussische (later Deutsche) Gerichtszeitung; reprinted in 
Scherz und Ernst (1885). 

42 Scherz und Ernst, pp. 338, 339. 

43 Besitzwille, pp. ix, x. 

44 The medieval practice of referring cases to the law faculties con- 
tinued through the middle of this century. 


134 Four German Jurists 


to furnish opinions — occasions which not infrequently led 
me to recoil in terror from the application of theories that I 
had previously defended; and last, but not in least part, 
through the moot-court,*® which I have held all my life, and 
which I regard as one of the most valuable correctives for the 
teacher himself against unsound theoretic views.*° 


A convert naturally exaggerates the sinfulness of his unre- 
generate years, and Jhering’s self-accusation must be taken 
with more than a grain of salt. In the context of the pas- 
sage just cited he instances, besides his earliest work,*’ pub- 
lished in 1844, sundry treatises which he had begun to write 
but had left unpublished and unfinished, and his opening 
essay in the first volume of the Year-Books,** —a periodical 
which he and the Germanist von Gerber started in 1857. In 
this essay, as in the third installment of his Spirit of the 
Roman Law, which was written at nearly the same time, 
Jhering exalted the function of the ‘“ higher ” or “ produc- 
tive ” jurisprudence; but whether this was the same thing as 
the abstract jurisprudence which he began to combat three 
years afterwards, and whether, in his later work, he ever 
really abandoned the problems which he had set himself in 
1857, may well be questioned. As to the unpublished 
treatises, we must take his word for their unpractical char- 
acter; but the fact that they were not completed is an argu- 
ment for Jhering as defendant, not for Jhering as advocatus 
diabolt. For the rest it may be said that his great work on 
the Spirit of the Roman Law, of which the major part was 
written between 1850 and 1860, does not impress a foreign 
reader as either abstract or unpractical; and the same may 
be said of his most important single contribution to “ pro- 
ductive ” jurisprudence, the theory of the negative interest 

45 “ Pandectenpracticum’”’—an exercise in applying Roman law to 
concrete cases, real or hypothetical. ‘ Moot-court ” is in so far an inexact 
translation as the forms of judicial procedure are not usually observed in 
these Practica. 

46 Scherz und Ernst, loc. cit. 

47 Abhandlungen aus dem romischen Recht. 

48 Jahrbiicher fiir Dogmatik —still published under the title Jhering’s 


Jahrbiicher. 
49 Geist des romischen Rechts, Theil 2, Abth. 2 (3d ed.), pp. 357-380. 


ee a 


Four German Jurtsts 135 


of contract, which first saw the light in 1860 °° but was un- 
doubtedly worked out at an earlier date. It may be added 
that his theory of possessory intention, set forth in his last 
important fulmination against “ formalistic ” jurisprudence 
in 1889, had taken preliminary form in his mind, and had 
been orally communicated to others, as early as 1846.” 

There can be no question, however, that about 1860 
Jhering became strongly convinced, as he afterwards ex- 
pressed it, that 


a change must take place in our Romanistic theory. ... It 
must abandon the delusion that it is a system of legal mathe- 
matics, without any higher aim than a correct reckoning with 
conceptions.” 


He opened his attack, in the Confidential Letters, with a 
humorous sketch of the beauties of the new jurisprudence. 
He proceeded to show, in the case of a young theorist just 
plunged into practice, the unjust and absurd results to which 
the logical application of accepted general principles would 
lead. In the later letters he undertook to lay bare some of 
the causes of the aberrations of legal science. ‘These he 
found partly in the divorce of practice and theory, partly in 
the system of legal instruction and examinations, but prin- 
cipally in the custom of requiring that every aspirant to a 
German professorship shall legitimate himself by producing 
something new in the way of theory. In Romanistic juris- 
prudence, he explains, this is practically impossible. The 
grapes have been trodden for centuries. The only way to 
get any more wine out of the dry mass is to pour on water 
before pressing again, and fortify the product with alcohol 
and sugar. 


The proportion in which these ingredients are added differs 
with the individual taste of the manufacturer. In most cases 
water preponderates. One jurist has experimented with 
alcohol alone; but without his observing it, a good deal of 
water is said to have run in with his Sporit.°° 


50 Jahrbiicher, vol. iv, pp. 16 et seg. 5? Scherz und Ernst, pp. 341, 342. 
51 Besitzwille, preface, p. vi. 53 Scherz und Ernst, p. IIo. 


& 


136 Four German Jurists 


This allusion to his own work, with other bits of similar 
self-persiflage, was of course inserted to mislead those who 
were seeking to identify the author of the letters. The extent 
to which his purpose necessitated ridicule of particular 
writers made the preservation of the secret seem especially 
desirable. He continues: 


There have come into my hands, within a few days, various 
writings of one Dr. Asher, tutor in Heidelberg, — invaluable 
contributions, which, with sundry others, I shall use in one 
of my future letters. But I appeal to you: how can this man, 
in spite of the incredible ingenuity he displays, get away from 
the fact that Cujacius lived three centuries before him and 
took the best ideas off in advance? Had he been born then, 
and Cujacius in our time, he would very likely have been 
Cujacius, and Cujacius Dr. Asher. It all depends on the 
first chance at the press. It is all very well to say that if no 
new and sensible view is possible, it is better to take one 
already provided; but you do not understand the situation. 
Better a senseless view for one’s self alone than a reasonable 
opinion in common with others.”* 


He concludes with a proposal that tutors be released from 
the necessity of publishing books. He finds in the Roman 
law a suggestion of a mode in which this reform might be 
brought about without ostensibly abandoning the rule. He 
finds there also a precedent for the lenient judgment of tu- 
torial productions. 


In Rome, as is well known, the rule existed from the time 
of Augustus that whoever desired to take by testament must 
show a certain number of children: liberi were the condition 
of capacitas. Persons, however, to whom the emperor was 
well disposed, escaped this trouble by obtaining the zs 
liberorum; the children were legally presumed or simply 
waived. Among others, Diana of Ephesus, who as goddess 
of chastity could not with propriety be held to the observance 
of the law, was thus invested with capacity. The importance 
attached in Rome to physical fruitfulness we attach to intel- 


SS Fotd.. pe TUX: 


eS eS ee ee re el 


Four German Jurists 137 


lectual productivity: there it was ‘no inheritance without 
liberi” ; here it is “ no professorship without libri.” °° 


He therefore proposes that, as soon as law tutors indicate 
an intention to print, 


a ius librorum should be granted them, i.e., they should be 
made professors just as if they had published the necessary 
books. Even now, in many universities, the requirement of 
books is not taken very strictly: there is the same leniency 
in judging them which the Romans observed in the matter of 
children, and which is set forth in the Digest in a way so 
humane and so applicable to the question before us, that I 
cannot refrain from printing the whole passage. 

D. 50, 16,135. ‘‘ Quaeret aliquis, si portentosum vel mon- 
strosum vel debilem mulier ediderit vel qualem visu vel 
vagitu novum, non humanae figurae, sed alterius, magis ani- 
malis quam hominis, partum, an, quia enixa est, prodesse ei 
debeat? Et magis est, ut haec quoque parentibus prosint: 
nec enim est quod eis imputetur, quae qualiter potuerunt, 
statutis obtemperaverunt, neque id quod fataliter accessit, 
matri damnum iniungere debet.”’ 

Freely adapted to the case in point: ‘‘ When tutors have 
done the best they can to observe the statutes of the univer- 
sity, why should they be held responsible because, by ill hap, 
the books they have brought forth are not normal literary 
productions but monstrosities, or exhibit such debility of 
mind as not to seem viable? They have at least brought 
something into the world, and that should be reckoned to 
their credit.” The granting of the zus librorum and the 
professorship should of course be made conditional on an 
undertaking not to publish the book submitted, or at least 
not to publish it for a term of years, say the classical nine 
years — nonum prematur in annum. ‘The safest course 
would be to commit it to the custody of the law faculty. 
After the lapse of nine years and the attainment of the pro- 
fessorship, the author would hardly insist on publication. 
He would probably thank God that a wise paternal gov- 
ernment had preserved him from an over-hasty literary 
venture.”® 


55 Scherz und Ernst p. 113. 56 Scherz und Ernst, pp. 113, 114. 


138 Four German Jurists 


This is not only very good fooling: there is good sense 
back of it. 3 

A more serious attack upon the current tendencies in Ger- 
man jurisprudence was made in the concluding sections of 
his fourth installment of the Spirit of the Roman Law. These 
contained a strong argument against “‘ the over-valuation of 
the logical element in law,” *’ and an attempt to re-formulate 
the conception of a right.°* “If a right is a power of will- 
ing,’ he inquired, “‘ how is it that infants and lunatics have 
rights? ” To this the orthodox responded that “ the right 
does not exist through the fact that volition is exercised, that 
a will is expressed, but through the fact that an exercise of 
will is permitted, that a will may be expressed.” °° Jhering 
promptly seized this as an admission that, under the defini- 
tion, it is the guardian and not the infant or lunatic who has 
the right, since it is the former whom the law “ permits to 
will.” Jhering’s own definition of the right is “a legally pro- 
tected interest.” The interest is the “kernel”; the legal 
protection, by right of action, is the “shell.” We speak of 
a right as appertaining to the infant or lunatic, and not to the 
guardian, because the interest is not with the latter, but with 
the former. So in the case of the fictitious or juristic person; 
the interests of an incorporated stock-company, for, example, 
are those of the stockholders; the conception of juristic per- 
sonality in the corporation is simply a device for explaining 
its power to sue. The construction, according to this for- 
mula, of the ‘‘ foundation,’’ when property is held together 
for some religious, educational or charitable purpose, gave 
Jhering more trouble; but with the courage of his convic- 
tions he here vested the interest — and therefore the right 
—in the public at large. : 

It is to be regretted that neither Jhering nor his adversaries 
were acquainted with the English law of trusts. They would 
there have found a full recognition of the element of interest, 
for which Jhering was contending, and they would also have 


57 Geist des rOmischen Rechts, Theil 3, Abth. 1, pp. 308, 316. 
58 Ibid, pp. 317-354. 59 Windscheid, Pandekten, § 37, n. 2. 


Four German Jurists 139 


found that English law, in distinguishing the legal from the 
equitable right, has always attributed the latter to the person 
who has the interest, and the former to the person who has 
the power. They might well have ended by admitting that 
these two elements exist in every right, and that the two are 
separable. Such a termination of the controversy would 
have left to the adherents of the dominant theory the right 
to insist that the really juristic element is the power, and 
to Jhering the credit of having called attention to that ele- 
ment which German theory had previously ignored. 

Although no such consensus has been attained, Jhering’s 
arguments have had considerable influence, Some jurists 
have accepted his definition; others, like Bruns,*° have at- 
tempted to weave into the sacred Hegelian formula a rec- 
ognition of the interest which underlies the right. 

Jhering’s next attack upon “abstract” legal theory was 
directed against the current explanation of the protection ac- 
corded by Roman law to the possessor as such, whether 
the possession be rightful or wrongful, honest or dishonest.** 
The German literature of this century on the law of posses- 
sion is very extensive: when, in 1889, Jhering returned to 
this field, his second book? was at least the thirtieth treatise 
on possession that had appeared since Savigny’s — doctor 
dissertations and review articles not included. The English 
literature can show, within the same period, but one im- 
portant work on this branch of the law.** Why the German 
mind has been so fascinated — not to say possessed — by 
this subject is a curious question. In his Possessory Inten- 


60 “Die subjektiven Rechte sind die Befugnisse, die den einzelnen Sub- 
jekten dem objectiven Rechte nach zustehen. Sie bestehen im Allgemeinen 
in der vom objectiven Rechte anerkannten und geschiitzten Frezhezt der 
Einzelnen in Verfolgung ihrer Lebensinteressen.” Bruns, in Holtzendorff, 
3d ed., p. 352.—“‘ Freedom” is still there; but “will” has disappeared, 
and “interest” has won a footing! Further on it appears that freedom 
has become freedom of action: “ Moglichkeit zum Handeln.” 

61 Grund des Besitzesschutzes (1868). First published in Jhering’s 
Jahrbiicher. 

62 Besitzwille (1889). A third and less technical treatise on the subject 
is to be found in Jhering’s article, “‘ Besitz,’ Handworterbuch der Staats- 
wissenschaften (1890-1892), vol. ii; reprinted in Jhering’s Jahrbticher, 1893, 
pp. 41-08. 

63 Pollock and Wright, Possession in the Common Law (Oxford, 1888). 


140 Four German Jurists 


tion Jhering hazards the conjecture that it is the imperfect 
juristic development of the doctrine that attracts the con- 
structive jurist. Possession is inarticulate, “the mollusk 
of legal institutions’; it is so “soft and flexible ” that the 
jurist can make of it what he wishes; it is “ a rubber figure.” °* 
Here Jhering is less happy than usual in his similes. The 
corpus of possession, the power of control, is a matter of 
fact; the law of possession, has grown up about this hard 
central fact; and the constructive jurist is attracted not by 
the ease with which this legal institution can be moulded into 
logical form, but, on the contrary, by the resistance which 
it offers to his processes. 

There is, however, a good bit of truth in Jhering’s state- 
ment that the doctrine is imperfectly developed. It was 
imperfectly developed in the Roman law, as is shown by the 
sweeping changes introduced by medieval practice and mod- 
ern legislation. Whether the protection of possession at 
Rome originally represented the natural reaction of civilized 
society against the assertion of rights by force, or began in 
the protection accorded to the occupants of the public lands,®° 
the Roman law was steadily working towards a broader 
principle than the discouragement of self-help, or the de- 
fense of the established state of things. In the light of the 
modern European development, and of the independent but 
similar results reached in the English law, the goal toward 
which Roman law was tending seems to be the protection 
of possession under any sort of title against every other title 
that is no better than that of the possessor, with the premise 
that naked possession is itself a title. “‘ Every sort of pos- 
sessor,”’ says Paulus, ‘‘ by the very fact that he is possessor, 


64 Besitzwille, pp. 284, 285. 

65 The occupants or possessors of ager publicus were legally mere tenants 
at will, holding at the sufferance of the state. In practice their holdings were 
permanent, were capable of conveyance and devise, and passed to the heirs 
ab intestato. Niebuhr, Romische Geschichte, vol. ii, pp. 150 et seg.; Mar- 
quardt, Rodmische Verwaltung, vol. i, p. 155; vol. ii, pp. 98 et seg. Niebuhr 
first suggested that the possessory interdicts were devised for their protection. 
Dernburg, Entwickelung und Begriff des juristischen Besitzes (1883), has 
given an elaborate development to Niebuhr’s idea. Against Dernburg, Jher- 
ing, Besitzwille, p. 124. 


Four German Jurists I4I 


has more right than one who does not possess”’ ; and Ulpian 
illustrates this statement by saying that the robber who, be- 
ing asked why he possesses, will only answer, “‘ Because 
I possess,” and will not pretend that he has any color of 
title, possesses “ by title of possession.” °° The principle of 
relativity of title is recognized in the actio Publiciana and in 
condictio possessionis, for in neither of these actions has the 
plaintiff to show a good title, but in the first only a color of 
title, and in the second only that possession has passed from 
him to the defendant sine causa; and in both actions the 
defendant wins if he can show a title as good as the plaintiff’s. 
The same principle is partially recognized even in the pos- 
sessory interdicts, in that the possessor who has obtained pos- 
session by force or stealth or revocable permission (aut vi 
clam aut precario) has legal relief, in case of arbitrary en- 
croachment or annoyance, against every adversary except 
the person whom he has ejected, or by whose permission he 
holds. 

But the principle is not fully worked out. The possessory 
remedies are not granted to all possessors. They are granted 
to the possessor who thinks himself owner, and to the pos- 
sessor who knows that he is not. They are granted to the 
holders of life estates and of perpetual leaseholds, 7.e., to all 
persons holding under such titles. They are granted even to 
the person “in possession” of a right of way. They are 
granted to the pledgee in possession and to the stakeholder.” 
They are denied to the ordinary lessee and to the ordinary 
bailee. Lessees and bailees have not even the relative pro- 
tection accorded to the tenant-at-will, who is protected 
against every one except his grantor. Lessees and bailees are 
mere ‘‘ natural” possessors, or, as the modern writers call 
them, “ detentors.”” They have not “ juristic’’ possession. 

66 “ Qualiscumque enim possessor hoc ipso quod possessor est plus iuris 
habet quam ille qui non possidet.” D. 43, 17, 2. “ Pro possessore vero 
possidet praedo, qui interrogatus cur possideat, responsurus sit ‘ quia pos- 
sideo’ nec contendet se heredem vel per mendacium, nec ullam causam 
possessionis possit dicere.” D. 5, 3, 11, § 1, 12, 13 pr. 


87 Sequester: person with whom property is deposited pending deter- 
mination of its ownership. 


142 Four German Jurists 


If disturbed or ejected by the lessor or bailor, they have no 
action except for breach of contract. If disturbed or ejected 
by others, they must look for protection to the persons for 
whom they were holding. 

In the interdict procedure, moreover, the principle of 
relativity of right is only faintly developed; the dominant 
idea seems to be the discouragement of self-help. To this 
idea, it seems, is to be attributed the exclusion of the so-called 
exceptiones petitoriae, t.e., the barring of all plea of right on 
the part of the defendant. When the possessor seeks re- 
lief against arbitrary encroachment, or other disturbance, 
the defendant cannot allege ownership or any other sub- 
stantive right; he can only plead that the plaintiff’s posses- 
sion, aS against him, the defendant, is “‘ faulty,” because the 
plaintiff has derived possession from him aué vi aut clam aut 
precario. When the plaintiff seeks relief against a forcible 
ejectment, even this defense is barred. He who has been forci- 
bly ejected is to be restored because he has been forcibly 
ejected. That he had previously ejected his adversary is im- 
material; his adversary should have appealed to the law for 
relief. 

' Leaving the realm of Roman law and entering that of 
Roman theory, it should. be noted that the Roman jurists 
declared that possession is acquired and held animo et cor- 
pore. To be possessor, one must intend to possess; he must 
have the animus possidendi; and he must also have the cor- 
pus ; that is, he must be in control. When possession is held 
for us by others, — slaves, children or free agents, — we pos- 
sess animo nostro, corpore alieno. Paulus utilizes the animus 
theory to explain the denial of possessory remedies to lessees 
and bailees. Since these persons intend to hold for the lessor 
or bailor, and not for themselves, they are not legally posses- 
sors. 


68 So in the Justinianean law. In the Edictum perpetuum of Hadrian 
this rule applied only where the second ejectment was accomplished by 
‘armed force’’—‘‘ hominibus coactis armatisve.” The ejected possessor 
had the right to use ordinary force for the recovery of possession. Cf. Lenel, 
Edictum perpetuum, § 245. 


Four German Jurists 143 


Starting with these rules of the Roman law and these 
dicta of the Roman jurists, the German jurisprudence of our 
century has striven to discover the essential nature of that 
‘“juristic ” possession which the law protects, and the funda- 
mental idea which underlies the protection. It is not won- 
derful that the task has been found arduous. To an outsider 
it seems a trifle singular that so many lawyers should have 
employed their time in such a quest. Why not admit that the 
Roman distinction between “ possession ” and mere “ deten- 
tion ”’ is historical, and to some extent arbitrary, and that the 
protection accorded to possession rests on more than one 
basis. The answer is, I think, that philosophy instinctively 
seeks, even in the case of social institutions, a single central 
idea, a simple and comprehensive explanation, and that the 
German jurists are nothing if not philosophical. 

Savigny found the central idea of juristic possession in the 
animus domint, the intention of holding against all the world. 
The lessee or bailee, as Paulus had already said, is not a 
possessor, because he is holding for the lessor or the bailor. 
It is, of course, true that the pledgee and the stakeholder and 
the tenant at will, who have no animus domini, have the pos- 
sessory actions; but these are anomalies. The ground for 
the protection of possession Savigny found in the fact that 
all violence (Gewaltthatigkeit) is illegal. This expression 
leaves it unclear whether he regarded disturbance of posses- 
sion as illegal because it is an offense against the public order, 
or because it is an invasion of a private right, Other pas- 
sages in his treatise indicate that he leaned to the latter 
theory, The right invaded is not the right of possession, for 
possession is a fact, not a right; °° it is the freedom of the 
person that is attacked, and the protection given to the pos- 
sessor is “‘a protection of the personality.” Gans gave to 
this idea a strictly Hegelian expression, asserting that “the 
will an sich is something substantial, something to be pro- 

69 This is Windscheid’s interpretation of Savigny’s position. Savigny 
himself says (Besitz, p. 44) that “ possession is at the same time a fact and 


a right,” but qualifies this statement immediately by explaining that it is 
a fact in its essence, but resembles a right in its results. 


144 Four German Jurists 


tected,” and that “ the particular will has to yield only to the 
higher universal will.” In various shadings this explanation 
has been generally accepted; and the central idea of posses- 
sion, and the ground of its protection, have thus been brought 
into most satisfactory harmony. ‘The decisive element in 
possession is the will, and possession is protected because the 
law respects “‘ the realized will.’”’ So Windschied explains 
that the distinction between the different kinds of possession 
“depends upon the possessor’s state of mind” ; and that 
“‘ that possession which is associated with the will to have the 
thing for one’s self, which is the realization of the will to 
appropriate the thing,” is legally protected because “ the will 
which has made itself actually valid in this possession is as 
such, without regard to the rightfulness of its content, worth 
just as much as any other single will which aims to bring 
the thing under its control.” “° Similarly Bruns: 


Power without will is no more possession than will without 
power. ... Will and power must cover each other; the 
will must go as far as the power, and vice versa; and since he 
alone really wills to control who wills this for himself, and not 
as mere representative of another, therefore he alone is pos- 
sessor who wills to have the thing completely for himself... . 

If in the institutions of positive law we see the revelation 
(Erscheinung) of the universal idea of right, and if, accord- 
ingly, we seek for such a revelation in this matter of posses- 
sion, we are instinctively led to the universal right of human 
personality and liberty, and thus to the principle that the 
personal will to control, which is realized in possession, needs, 
as such, to yield to no other will, but only to the law and the 
forms of law. . .. The basis of the protection of posses- 
sion lies in the right of the personal possessory will an sich.” 


In his Basis of the Protection of Possession Jhering puffed 
away with a breath these philosophic mists. Will, he de- 


70 Windscheid, Pandekten, § 148. In justice to Windscheid it should be 
added that under this philosophical drapery stands the defensible legal idea 
that disturbance and invasion of possession are torts. This is also Savigny’s 
theory. But Bruns expressly rejects it, falling back on philosophy pure and 
simple. 

71 Bruns, “ Das heutige rémische Recht,” in Holizendorff, 3d ed., pp. 
380, 381. In his Recht des Besitzes, § 58, Bruns declares that the will is in 
its nature free and every coercion of the will is a wrong. 


Four German Jurists 145 


clared, is undoubtedly the vis agens in the whole field of 
private law, but only in so far as it is exercised within legal 
limits. If the “ realized will” is entitled to respect and pro- 
tection, why does the law compel the person who has forcibly 
ejected a prior possessor to restore possession and pay 
damages? It is not true, in law, that one will is as good as 
another; in some cases the law recognizes and protects the 
“realized will,” in other cases it discountenances and nullifies 
it. Why the law does this cannot be determined by invoking 
the right of the will an sich.” 

After classifying the various theories, and subjecting them 
to a searching and in many cases destructive criticism, Jher- 
ing advances his own explanation. Possession is protected 
for the sake and in the interest of property, of ownership. 
The owner is regularly possessor; ‘* and whenever this is the 
case the maintenance of his position as possessor is a much 
simpler matter than the maintenance of his position as owner. 
As possessor he is spared the proof of his right; he is pro- 
tected against encroachment, against every sort of disturb- 
ance and annoyance, upon his showing that he is in pos- 
session. If ejected, he is put back upon his showing that 
he was in possession and has been ousted without process of 
law. Possession is the strongest outwork of the fortress 
of ownership; and the protection of possession is a neces- 
sary complement to the protection of ownership. Of course 
the better protection thus accorded to owners enures to the 
advantage of non-owners in possession. ‘That is the price 
which property has to pay for the advantages it secures in 
the protection of possession; but the advantages are cheap 
at the price. 

The two chief points in Jhering’s theory — facilitation of 
proof in possessory actions and probable ownership of the 
possessor — were too self-evident to be new. No practicing 
lawyer, of any time or race, could fail to appreciate the pro- 
cedural advantage of resting on possession, and avoiding the 

72 Cf. Stahl, Philosophie des Rechts, 5th ed. (1878), vol. ii, p. 304; and 
Dernburg, Pandekten (1888), § 170. 


78 Either because he holds the property himself, or because a tenant or 
bailee holds it for him. 


146 Four German Jurists 


probatio diabolica of title; from this point of view posses- 
sion, as the English lawyers say, is “‘ nine points of the law.” 
The presumptive ownership of the possessor was suggested 
by Placentinus (of Bologna and Montpellier) in the twelfth 
century, and in the nineteenth Gans momentarily abandoned 
the contemplation of Wille an sich to point out that honest 
possession was at least incipient ownership, perfectible by 
prescription. The combination of these points of view, how- 
ever, was original with Jhering, and the formulation of the 
theory was all his own. 

If Jhering had contented himself with presenting this view 
of possession as an explanation of the rules of Roman law, it 
is hard to see how anybody could have taken issue with him. 
But, like all his countrymen of this century, he was looking 
for the explanation, the basis (Grund) of the Roman law of 
possession.’* He had rejected other excellent theories, such 
as the repressal of self-help, the maintenance of public order, 
etc., because they do not account for all the rules of the law. 
His opponents, therefore, hastened to point out that his 
theory does not explain why, in possessory proceedings, the 
defendant is not allowed to plead title. If the law of pos- 
session is based on the interest of the owner, it is quite 
logical, they declared, to spare him the proof of title when he 
appears as plaintiff, but quite illogical to deprive him of the 
opportunity of proving title when he appears as defendant. 
Jhering had anticipated this objection, and had tried to meet 
it in his book; but his explanation is far from satisfactory. 

Twenty years later, in 1889, Jhering attacked the theory 
that the intention to maintain control against all the world, 
the will to hold like an owner (animus domint) is the charac- 
teristic element in “‘juristic’’ possession—the element 
which distinguishes such possession from the merely “ nat- 
ural” possession of the lessee or bailee. Against this 
theory, which he terms the “ will theory,” or “ subjective 

74 Although he had previously recognized, in a general way, that it is 
sometimes impossible to find a single principle at the basis of a legal institu- 


tion, and that a given institution may be “ according to its primary plan 
absolutely dual.” Geist des romischen Rechts, 3d ed., part ii, div. i, p. 355. 


Four German Jurists 147 


theory,” he set up and defended an “‘ objective theory,” which 
may be summarized as follows. The intention of possessing 
is of course essential to possession, but the intention of pos- 
sessing for one’s self is not essential."° The denial of the 
possessory remedies to lessees and bailees is an arbitrary rule, 
and its explanation is to be found in the economic and 
legal development of the Roman state.“® The Roman tenant 
farmer (colonus) was far more dependent upon his land- 
lord, far more completely under the landlord’s surveillance 
and control, than the modern agricultural lessee. The Roman 
peasant-proprietor, in Republican times, leased but a part of 
his property, and landlord and tenant cultivated side by side. 
When land was given by large proprietors for really inde- 
pendent cultivation, it was given precario. Similar conditions 
prevailed in the earlier leases of dwellings: the tenant (i- 
quilinus) took only a part of the house; the remainder was 
occupied by the landlord. It was natural, in both cases, that 
the landlord was regarded as the possessor, and that the 
tenant looked to him for protection against disturbance. 
This was but a slight extension of the authority of the head 
of the house, the paterfamilias. At first he possessed through 
the agency of his children and slaves; later he possessed 
through tenants. Children and slaves had only natural pos- 
session; tenants have the same. The extension of this rule 
to bailees seemed a logical necessity. It did little harm, be- 
cause the protection of possession by the interdicts was much 
less important in the case of chattels than in the case of 
real property.’ Paulus’s assertion that lessees and bailees 
do not possess ad interdicta because they do not possess for 
themselves but for others, simply represents his effort to 
find a juristic explanation for the established rules of the 

75 The Roman jurists spoke only of the animus possidendi, or possidentis. 
The phrases animus domini, animus dominantis, animus rem sibi habendi, are 
medizval or modern. Only the second phrase, animus dominantis, has any 
basis in the ancient texts; it is a translation of the Byzantine ~ux7 deardfovros 
found in Theophilus’s paraphrase of the Institutes, and in the Basilica. 

76 Besitzwille, ch. viii. 

77 To sustain an action of theft, or an action for recovery ex contractu of 


things loaned by him, etc., the bailee had need neither of title nor of “ juris- 
tic’ possession. 


148 Four German Jurists 


law. As a piece of juristic construction it is far from ad- 
mirable. It put a novel meaning into the familiar animus 
possidentis ; and it failed to account for the well-established 
rules which gave the protection of the interdicts to the 
tenant-at-will, to the pledgee, and to the stakeholder. But 
in spite of its unsatisfactory character, this explanation of 
Paulus has been repeated ever since, and has become the 
basis of the modern theory of juristic possession.” 

Jhering subjects the “ will theory ” and his own theory to 
a series of “tests ” — historical, procedural, political and 
didactic. The most interesting of these (after the historical), 
and the one that throws most light upon the substantive 
law, is the ‘‘ procedural test.” “® The “ will theory,” which 
grants or denies the possessory remedies according to the 
animus of the possessor, logically requires that the plaintiff 
in a possessory suit should allege and prove his animus domi- 
nantis. But to hold a plaintiff to prove his state of mind 
is absurd. All that can be required is that he should pro- 
duce indicia of his state of mind, 7.e., facts which lead to 
the presumption that he has been possessing for himself. 
The most important fact of this sort is the title under which 
he came into possession —his causa possidendi. Accord- 
ingly, many authorities have held that the plaintiff must at 
least show a causa possidendi which indicates an intention 
to hold for himself, e.g., inheritance, devise, purchase or gift. 
But the ejector and the thief are entitled, by Roman law, 
to possessory actions. Was it required in Roman practice 
that such plaintiffs should allege and prove violent ejectment 
or theft? The Roman practice, Jhering maintains, like that 
which generally prevails in the modern world, required of 
the plaintiff no proof save of his corporeal possession.*° If 


78 Besitzwille, ch. xiii. 

79 Besitzwille, ch. ix. It seems clear that it was the failure of the 
“ subjective theory ” to stand the test of procedure that first led Jhering to 
question its truth. In the fourth of his “ Confidential Letters,” printed in 1863, 
he describes an imaginary suit for protection on the ground of possession 
which a young practitioner tries to carry through on the basis of Savigny’s 
theory, with a result most disastrous to his client. Scherz und Ernst, pp. 
63 et seq. 

80 For Roman practice there is no direct evidence; but the assertion of 
Paulus, Sententiae, 5, 11, § 2, that to prove delivery it is necessary only to 


tat A AS ee A wa — 


{ 
| 
. 
tC 
: 


Four German Jurists 149 


the plaintiff held by force or stealth, or permission from his 
adversary, it was incumbent on the adversary to allege and 
prove this. If he held by lease or bailment, it was probably 
incumbent upon the defendant to allege and prove this. Such 
at least is the rational mode of distributing the burden of 
proof.** Ina rational system of pleading, therefore, animus 
plays no role whatever. It never appears. 

If this is true, Jhering argues, is it not absurd to make will 
or intention the criterion of possession in our statement of 
substantive law? ‘The true statement of the law is that nat- 
ural possession as such is protected; that the corporeal pos- 
sessor has not merely the right of self-defense, but the pecul- 
iar remedies given to the possessor. In two cases, however, 
the Roman law withdraws this protection; it refuses the 
possessory interdicts to lessees and bailees, not because they 
have the intention of holding for others, but because they 
are lessees or bailees. ‘Their actual intention is of no con- 
sequence whatever; if they decide to hold for themselves, 
or for third parties, their change of mind has no effect upon 
their legal position, or upon that of the lessors or bailors for 
whom they originally agreed to hold. ‘‘ No one,” said the 
Roman jurists, “can change for himself his causa posses- 
stonis, 7° °% 

Between the ruling “subjective theory”? and his own 
‘objective theory” there is, as Jhering recognizes, an in- 
termediate opinion, which distinguishes juristic from natural 
possession. by the animus or intention of the possessor, but 
which treats the actual will of the possessor as irrelevant. 
It attributes to him the “typical” will which a man in his 
position, with his causa possessionis, ought to have, and re- 
fuses to consider whether he has any other will. As Jhering 


prove corporeal possession, makes in favor of Jhering’s contention. So, I 
think, does D. 5, 3, 11, § 1 et seg. cited above (p. 141). 

81 So in the French law. Code Civil, art. 2230: “‘ On est toujours présumé 
posséder pour soi et a titre de propriétaire, s’il n’est prouvé qu’on a com- 
mencé 4 posséder pour un autre.” “An article,” Jhering characteristically 
remarks, “ that in my eyes is of more importance for practical life than all 
that the literature of this whole century has produced regarding the distinc- 
tion between possession and detention.” Besitzwille, p. 168. 

82 Digest, 41, 2, 19, § I. 


150 Four German Jurtsts 


points out, this theory really abandons will as the criterion 
of juristic possession, and substitutes positive legal rule. The 
typical will with which it operates is a mere legal fiction.** 

To complete this sketch of Jhering’s position on the 
legal topic which has most largely occupied the attention of 
German jurists in this century, it should be added that in 
opposition to the Roman, as well as to the dominant modern 
view, he asserted that possession is not a mere fact, nor 
merely a “ legal relation,” but a right.** Possession is un- 
questionably an interest, and possession is undoubtedly 
protected; and having defined a right as “ a legally protected 
interest,” Jhering was logically constrained to admit pos- 
session to the category of rights. To most jurists this 
deductive test of his definition must seem a proof that the 
definition is at fault. A “right” that figures in legal pro- 
cedure only so long as the question of right is not raised, is 
surely a right of a very singular sort. In his Possessory In- 
tention Jhering adheres to his earlier statement as far as 
juristic possession is concerned, but abandons the ground in 
the case of natural possession, which he declares to be only 
a “legal relation.” °° But since he maintains that even the 
natural possessor enjoys some protection, and that natural 
possession and juristic possession differ solely in the degree 
of protection accorded by the law, we obtain, from his prem- 
ises, this result: a right is an interest which enjoys a certain 
degree of legal protection. What degree is maser es is left 
to every one to settle for himself.*° 


83 Besitzwille, pp. 15-20. Of all the representatives of the “causal . 
theory,” Dernburg, perhaps, comes nearest to Jhering’s position. He writes 
in his Pandekten (2d ed., 1888), § 179: “ The will to possess for one’s self . . . 
is to be deduced from the situation (Sachlage). It results particularly from 
the ground — the causa —on which possession is taken. He who takes as 
owner or pledgee is juristic possessor; he who takes as lessee or agent is not 
juristic possessor.” But further back, in § 172: “ Possessory relations con- 
stitute juristic possession only when the purpose of the possessor is to 
possess for himself, and when this purpose enjoys the recognition of the 
state.” 

84 Geist des rdmischen Rechts, 3d ed., part iii, div. 1, pp. 351 et Sseq.; 
“Der Besitz,” in Jhering’s Jahrbiicher, 1893, pp. 63 et seq. 

85 Besitzwille, pp. 50, 51. 

86 In Besitzwille, loc. cit., there is also a curious reversion to the will 
theory, discarded twenty years before in his Besitzesschutz. While the pro- 


Four German Jurists I51 


The principal conclusions which Jhering reached in his 
Possessory Intention seem to me sound; but, for my pres- 
ent purpose, the proportion of truth in this book and in his 
Protection of Possession is of less interest than the point of 
view which his readers were compelled to take and the kind 
of considerations which were urged upon them. Before 
Jhering wrote, the discussion of the law of possession had 
been conducted in the most abstract fashion. Very little 
consideration had been given to the practical operation 
of the rules; and in the search for the principle beneath them, 
it had apparently not been recognized that the social effect 
of the rules might furnish a useful clue. In the first of 
these books he shifted the discussion from the plane of the 
abstract and ideal to that of the concrete and practical; and 
to one who had been ballooning through space in the company 
of the earlier writers — I speak from experience — the de- 
scent was jarringly sudden. To the mundane American mind 
the shock was slight, and its results exhilarating; but to 
Jhering’s metaphysical countrymen it was obviously severe. 
With some of them, as with Keats’s Endymion, the “first 
touch of the earth went nigh to kill.” 

For nine years after the appearance of his Protection of 
Possession, from 1868 to 1877, Jhering published but two 
small books—a collection of questions for discussion in 
moot-court,*’ and the famous Struggle for Law.** The cause 
of this relative reticence, on the part of a man whose mind 
was as active and whose temperament was as communicative 
as his, was his absorption in a task for which he felt and 
confessed himself inadequately prepared — the formulation 
of a philosophy of law. He was preparing the first volume 
of Zweck im Recht —a title which I cannot translate lit- 
erally, because the English language has no precise equiva- 
lent for Zweck. Teleology of Law may serve as a para- 


tection of juristic possession is still based on the interests of owners, the 
protection of natural possession is based on regard for “ the realized will.” 
And yet the only difference between juristic and natural possession is the 
amount of protection! 

87 Jurisprudenz des tdglichen Lebens (1870). 

88 Kampf ums Recht (1872). 


152 Four German Jurists 


phrase. The Struggle for Law was primarily a large chip 
thrown out from his workshop—a special theme en- 
countered, examined and dismissed into print — while he was 
elaborating his general doctrine.” . 

At an early stage of his campaign against what seemed 
to him the aberrations of German legal science, Jhering had 
become convinced that the cause of these aberrations was the 
general acceptance of a false philosophy, In dealing with 
the question of rights, in the last installment of his Sprit of 
Roman Law, he had discovered, as he believed, the basis of 
a true legal philosophy, Private rights exist primarily for 
the protection of private interests; but these private in- 
terests are themselves protected because they are at the same 
time public interests. All law exists for the furtherance of 
social ends, and ‘‘ the end [Zweck] is the creator of the en- 
tire law.” This, however, is true not only of law, but of 
morality, of:social custom or usage, of etiquette, and even of 
fashion. ‘The whole social life is governed by rules which 
are intended to subserve social ends; and these rules, worked 
out in social life and enforced by social pressure, constitute 
the system of social order. That which distinguishes social 
rules from mere social practice or habit [Gewohnheit| is 
their imperative character, the fact that society insists upon 
their observance, and inflicts upon those who disregard them 
pains and penalties. That which distinguishes the legal 
rule from the rule of morals or fashion is the nature of the 
sanction. The legal rule is enforced by “mechanical” or 
‘external ” coercion; behind it stands, in the last instance, 
the physical force of the community, and this force is directly 
exercised, in case of necessity, upon the person or the prop- 
erty of the individual. In early society this physical coer- 
cion is “unorganized”: it appears as lynch-law, clan feud, 
self-help of the wronged party. In international law, at the 
present day, the physical coercion is applied in an analogous 
manner; but early law and modern international law are 
rightly designated as law, because, in last instance, the 


89 As the author points out in Zweck im Recht, 2d ed., vol. i, p. 75. 


Four German Jurists ro 


mechanical sanction comes into play. Within the modern 
state, of course, the application of physical coercion is re- 
served to the state and its governmental organs, and national 
law has thus become the body of rules enforced by the state. 
Rules of morals, of social usage, of fashion, etc., are enforced 
by purely “psychological” or ‘internal’? coercion. The 
sanctions are those of public opinion — disapproval, ridicule, 
contempt, ostracism. The field of manners and morals and 
of the “ psychological ” sanction is of course much wider than 
that of law; it includes nearly all the field of law, and a vast 
outlying territory. Of the way in which the legal and the 
purely social sanctions supplement each other, he writes: 


The advantage of mechanical coercion by the state lies in 
the certainty of its operation: where it is applicable, it 
attains what it is meant to attain. But it is not applicable 
everywhere, and therein lies its incompleteness. It is too 
unwieldly, too clumsy, to give effect to all the norms which 
society recognizes as necessary. ... The advantage of 
psychological coercion by society lies in the fact that there is 
no relation of social life from which its influence is excluded. 
It forces its way in everywhere, like the air — into the inner 
chambers of the house and up to the steps of the throne, into 
regions where the mechanical sanction fails of all effect. Its 
weakness lies in the uncertainty of its operation: the moral 


judgment of society, of public opinion can be defied, but not 
the arm of the state.*° 


It will be seen that Jhering’s conception of law is analogous 
to that of the English positivists; but it is by no means 
identical with theirs. Rules of modern national law, he 
declares, are ordinarily established by the state; ** they 
are commands (Imperative) of the state; but it is not their 
enunciation by state authority, but their enforcement by state 
power that makes them legal rules. ‘‘ The circumstance,” 
he says, “‘ that the state authority declares a rule does not 
give it the character of a legal rule, but only the circumstance 


90 Zweck im Recht, 2d ed., vol. ii, pp. 182, 183. 
91 Jbid., vol. i, p. 331. 


154 Four German Jurists 


that the state binds its organs to execute the rule by external 
coercion.” °° In his definition of law from the teleological 
point of view, the declaration of legal rules by state authority 
is not included. ‘‘ Law is the totality of the conditions of 
existence of society that are assured by means of external 
coercion through the power of the state.” °° With the re- 
jection, as a criterion of law, of the formulation of its rules 
by the state, disappears of course the difficulty which the 
English positivists encounter in bringing customary law un- 
der their definition.°* And with the assertion that execution 
of law by the state is not essential to the conception of law 
in the widest sense, provided its rules are actually enforced 
by mechanical or external coercion, disappears also as we 
have noted, the difficulty of including primitive national 
law and modern international law in the category of 
law. 

It was not against the English positivists, however, that 
Jhering was defining his position, but against the German 
idealists. To these law is simply the expression of will — of 
God or of society or of the state; and the rights accorded to 
individuals are recognitions of the liberty of the individual 
will, which is “‘ in itself ” free. Primarily — and this is what 
gave the book its name — Jhering insisted on going behind the 
will and considering the motive. This, he declares, is al- 
ways something to be attained, an end(Zweck). Law is a 


92 Tbid., vol. 1, p. 337. “ Rules that cannot be enforced by him who sets 
them up are not rules of law.” Jbid., vol. i, p. 318. Puchta (Pandekten, 
§ 11, note g) had declared that where the legislator has abolished popular 
custom as a source of law, the result is only to deprive it of its operation upon 
the judge. It continues to exist as law, only the judge does not apply it. To 
this Jhering responds: “ We might as well say that when fire is put out with 
water, it is still fire, only it doesn’t burn.” He shrewdly adds that what 
led Puchta astray, was the possibility of voluntary obedience to certain rules 
within a certain circle. “If this is enough to give the rules the character of 
legal rules, then the rules of a prohibited association must be regarded as 
legal rules.” Tbid., vol. i, p. 322. 

93“ Recht ist der Inbegriff der mittelst dussern Zwanges durch die 
Staatsgewalt gesicherten Lebensbedingungen der Gesellschaft.” Jbid., vol. i, 
DAS ET: 

94 It is precisely because customary law still exists that Jhering qualifies 
with an “ordinarily ” his statement that the rules of law are established by 
the state. See loc. cit. (vol. i, p. 331), note 2. 


Four German Jurists 155 


means to the ends of society; rights are means to individual 
ends; neither law nor rights are intelligible unless we con- 
sider, in the case of every rule of law, the social end, and 
in the case of every right, the personal end. But from the 
social point of view the individual end is simply a means to 
securing social ends; and neither personal rights nor their 
limitations can be fully comprehended from any other than 
the social point of view. Private rights exist only because 
there is a large domain of social life in which egoism, in 
pursuing its own ends, realizes the ends of society. It is 
only in this domain, where the individual interest har- 
monizes with the social interest, that private rights exist; 
and they are exposed to limitation at the point where 
egoism menaces or even thwarts a social interest. Jhering 
illustrates this point by examining the social function of con- 
tract and that of private property, and by indicating the 
limitations which the law imposes upon freedom of contract 
and upon the employment and disposition of private prop- 
erty.” 
~ The Teleology, however, is more than a system of legal 
philosophy; it is a system of sociology.** It deals not only 
with law, but with economics, politics and ethics. Ethics, | 
as Jhering insists, is neither a part of psychology and the 
twin sister of logic, nor a part of theology and the twin 
sister of dogmatics. It is a part of social science, and the 
twin sister of jurisprudence, of economics and of politics.*’ 
All morality — the recognition of what is moral, and the will 
to do it —is an historical product, the outcome of the life of 
man in society. The rules of ethics are no more absolute and 
eternal than those of law: moral rules, like legal rules, sub- 
serve the interests of society, and these interests vary accord- 
ing to the character of the social organization and its stage of 
development. 

95 Zweck im Recht, vol. i, pp. 264-291, 516, 518-534. 

96 “Tn its present form,” Jhering wrote later, “the work ought really to 


be entitled: The Teleological System of the Moral Order of the World.” 
Besitzwille, preface, p. x. 97 Zweck im Recht, vol. ii, p. 125. 


156 Four German Jurists 


The theory, of course, is not new. It seemed new to 
Jhering, when he was working it out in his own mind, because 
he was imperfectly acquainted with the literature of ethics. 
He had found nothing akin to his view except in the writings 
of the English utilitarians — some of which, notably those 
of Bentham, of Mill and of Spencer, had been translated into 
German and were thus accessible to him; and he differed from 
the English utilitarians in that he could not accept the 
happiness or welfare of the individual as the basis of morals.”® 
To Jhering the social interest is the sole basis; and society, 
he declares repeatedly, cannot be constructed from the point 
of view of the individual.*® When, however, after the ap- 
pearance of the first edition of his second volume, a Roman 
Catholic ecclesiastic showed that Thomas Aquinas had 
clearly set forth both the social utility theory and the rela- 
tivity of “practical” truth,!° Jhering was visibly taken 
aback. In his second edition he admitted, with admirable 
frankness, not only the prior enunciation of his theories by 


“that great intellect,” but also the inexcusable character of 


his own ignorance. He adds, however, that the modern phi- 
losophers and the Protestant theologians are more to blame 
than he, a jurist. 


I ask myself, with astonishment, how was it possible that 
such truths, once uttered, should have been so completely for- 
gotten in our Protestant science? From what aberrations 
it might have saved itself, had it taken these utterances to 
heart! I, for my part, would perhaps have left this whole 
book unwritten, if I had known of them.*® 


98 Spencer’s Data of Ethics was not, I think, accessible to Jhering when 
he wrote the second volume of Zweck im Recht. Jhering had before him 
such earlier writings of Spencer’s as Sociéal Statics. In the Data of Ethics 
more stress is laid upon social utility, but even in this work ethical rules 
seem to be the result of a compromise between social and egoistic interests. 

99 Zweck im Recht, vol. i, p. 537; vol. ii, pp. 170 et seq. 

100 Jhering quotes: “ Firmiter nihil constat per rationem practicam, nisi 
per ordinationem ad ultimum finem, qui est bonum commune.... In 
speculativis est eadem veritas apud omnes, in operativis autem non est 
eadem veritas vel rectitudo practica apud omnes. ... Humanae rationi 
naturale esse videtur, ut gradatim ab imperfecto ad perfectum veniat... . 
Ratio humana mutabilis est et imperfecta, et ideo eius lex mutabilis est. . . . 
Finis humanae legis est utilitas hominum.” Zweck im Recht, 2d ed., vol. ii, 
p. 161, note 2. 101 Jbid. pa xem 


. 


Four German Jurists 157 


This apologetic outburst should be taken with more than 
a grain of allowance. ‘These ideas seemed to Jhering of 
fundamental importance; had he known them to be Thomas- 
ian, it would probably have seemed to him his duty, so long 
as they had lost their influence on modern German thought, 
to reannounce them. Jhering had a just pride in his original- 
ity; but the desire of personal recognition was not the only 
motive that led him to write. 

The most serious defect in his sociology, it seems to me, is 
that, in spite of his constant condemnation of the individual- 
istic point of view, he has by no means wholly emancipated 
himself from it. He not only starts with the purely egoistic 
individual and works towards the socially minded man, — 
which is perhaps legitimate as a matter of pure dialectics, — 
but he constantly assumes that individual egoism is histori- 
cally antecedent to all social evolution. That absolutely 
unhistorical being, “the natural man,’ who lived outside 
of all social bonds, recognized no social imperatives, sought 
only the attainment of his immediate selfish ends, is con- 
stantly assumed to be the real primitive man. Society ap- 
parently starts as a mere aggregation of such egoists, who 
coax and club each other into the pursuit of social ends.** 

It is a result of this initial error that he obviously be- 
lieves *** that the pressure of society upon the individual has 
been increasing through the course of human history, and is 
likely to increase. On this point the studies of the modern 
sociologists and the researches of the younger school of 
legal historians *** are pointing to a directly contrary conclu- 


102 Jn his third volume, which was never written, Jhering intended to dis- 
cuss the topics “ sense of duty,” “ love ” and “‘ ethical self-assertion ”’; and he 
indicated the position which he proposed to take by saying: “I, too, come 
finally to the result that the individual is to carry morality within himself as 
the law of himself, and that in acting morally he only asserts himself: but I 
come to that point, I do not start from it.” Jbid., vol. ii, p. 102. 

103 But indicates his reluctance to believe, in a way that shows his in- 
stinctive good sense. Jbid., vol. i, pp. 513 et seq. 

104 Jt has long been a commonplace of the writers upon Greek and Roman 
history that the absorption or “ merger,” to use a legal phrase, of the indi- 
vidual in the civitas was something so different from our modern conceptions 
as to be difficult to realize; but we have cherished the idea that a much 
higher degree of personal independence existed among our Teutonic ancestors. 
On this point the leading German legal historian of our day expresses a 


158 Four German Jurists 


sion. Man appears in history as a mere constituent particle 
in a horde: it is the horde that feels and wills and acts, 
carrying the individual with it like a drop of water in a wave. 
As society develops higher and more complex forms of organi- 
zation, the demands of society upon the individual increase, 
indeed, in number and variety, — and it is this fact prob- 
ably that has led Jhering and many others astray, — but at 
the same time the intensity of the social pressure as a whole 
is progressively diminished.**’ Personal freedom increases, 
and with it the sense of individuality. In last analysis indi- 
vidualism itself, as we understand it to-day, is the product of 
social evolution, and the freedom of the individual is not the 
starting-point, but the goal of human development. In this 
phase the Hegelian statement that the development of law 
is “‘the development of the idea of freedom,” however it has 
been misconceived and misapplied, has in it a profound 
truth. 

The contrary theory — that social evolution must have 
started with the purely egoistic “‘ natural man ” — neverthe- 
less so dominated Jhering’s thought that it determined the 
structure of his whole book. The question that he sets him- 
self is: How is the individual brought into the service of so- 


directly contrary opinion. ‘A prominent characteristic of early ‘Teutonic 
law is the inflexible strictness with which it subjects the single person to the 
dominant social relations, and the single legal issue to the views of the whole 
social body. The individualistic character that is not commonly attributed 
to our earliest law, is wholly lacking. More than in later times is the indi- 
vidual fettered to the will and the usages of the various associations in which 
he moves. ... The visionary ideal of Teutonic liberty in the primeval forest 
applied in fact only to the outlawed and outlandish men who were excluded 
from the circle of tribal companionship. ... It is not the liberty of the 
individual, but the equality of all free partakers of the law that is peculiar to 
the earliest Teutonic system. This equality, however, could be maintained 
only by the high degree of coercion exercised upon the individual —a coer- 
cion, to be sure, which, if consciously felt at all, was scarcely felt as hardship 
or constraint, because the individual, as an integral part of the community, 
was dominated by its manner of regarding things.” Brunner, Deutsche 
Rechtsgeschichte (1887), vol. i, pp. 111, 121. 

105 To appreciate the truth of this paradox —that increasing variety of 
social demands is perfectly compatible with an increase of personal freedom 
— we need not go so far afield as do the historical sociologists. We see the 
same thing when we compare life in a small modern village with life in a 
great city. In the village the demands of the social life are fewer, and yet 
the social pressure, the restraining and coercive power of local sentiment, is 
greater than in the city. City life makes more demands upon the individual, 
and yet it leaves him really and consciously freer. 


Four German Jurists 159 


ciety and induced to minister to its ends? His answer, so far 
as it is developed in the two volumes of which the work con- 
sists, is: Reward and coercion. Reward plays its chief réle 
in economic life, and the long chapter *°° which deals with this 
subject is mainly devoted to economics. He apparently as- 
sumes that the development of commerce precedes the de- 
velopment of law and the state, and that the state is preceded 
by voluntary association for common ends. Coercion is then 
taken up, and first the ‘‘ mechanical ” coercion which is exer- 
cised by law. In the second volume he goes over into morals, 
developing his “historical-social”’ theory, and dealing in 
extenso with social usages which we are not accustomed to 
regard as either moral or immoral, but to which society con- 
strains obedience by “ psychological ”’ coercion. The latter 
half of the volume is devoted wholly to manners — the last 
third (two hundred and forty pages) to courtesy (Héflich- 
keit). The motive that led Jhering into this apparently re- 
mote field was the desire to demonstrate that all “social 
imperatives ” — fashion, manners, morals and law— are 
adapted to social ends and subserve the ‘“‘ conditions of ex- 
istence of society.”” To prove this for law alone seemed to 
him an imperfect solution of the problem. In spite of much 
serious thought, much keen analysis and many amusing 
divagations, this portion of the book is hard to read; and the 
foreigner is impressed, as his countrymen have been, with 
the feeling that the devotion of several of Jhering’s best years 
to the study of social manners was a regrettable waste of 
energy. Whether Jhering himself felt this, or recognized 
only the fact that for the first time he had not “ scored ”’ 
either with his colleagues or with the public, the result was 
the same. He wisely abandoned the attempt to complete his 
“teleological system of the moral order of the world ” —if 
carried out on the scale set in his second volume, its comple- 
tion would have necessitated not merely a third but prob- 
ably a tenth volume — and returned to legal investigations. 
One separate book was thrown off in connection with his 


106 Vol. i, ch. vii, pp. 93-233. 


160 Four German Jurists 


labors on the second volume of the Teleology of Law, as the 
Struggle for Law had been thrown off while he was writing 
the first volume. This dealt with “ fees” —not lawyers’ 
fees, however, or even professional fees in general, but Trink- 
gelder..*’ It attained the moderate success (for Jhering) of 
a third edition, as did ultimately the Teleology; but it met 
with even greater professional disapprobation than the sec- 
ond volume of the larger work. 

Reading the Teleology again, as I have done for the pur- 
poses of this article, I am struck with the fact that the digres- 
sions are the most readable parts of the book. So long as 
Jhering clings to the main thread of his argument, he is 
almost tedious — a proof if one were needed, how far he had 
strayed from his proper field. In his excursions, however, he 
is invariably interesting. So, for example, in his eloquent 
protest against laisser-faire in the law of contracts; *°* so in 
his discussion of the difference between wages and govern- 
mental salaries, where, after pointing out that salaries are 
not based, like wages, on the value of the service, since the 
state pays only partly in cash and the rest in honor, he adds 
that the corrective is found in “ the rich wife,” *°° who repre- 
sents the partial conversion of the honor into cash; so in his 
denunciation of joint-stock companies, or rather of, the ab- 
sence of control over these companies which marked their 
first appearance in Germany, and led to the same abuses 
there as in other countries; **® so in his vehement attack upon 
the jury as an institution that formerly subserved important 
ends, but has outlived its usefulness; *** so in his demonstra- 
tion of the advantages of a strict criminal code to the crim- 
inals themselves, since popular justice is far more cruel than 
the most Draconian system administered by government — 
an admirable text for a sermon on the significance of lynch- 
justice in our own country; *” so in his analysis of the prin- 
ciple that underlies the prevention of cruelty to animals, 


107 Das Trinkgeld, 1882; 3d ed., 1880. 110 [bid., vol. i, pp. 220-225. 
108 Zweck im Recht, vol. i, pp. 132-140. 111 Jbid., vol. i, pp. 408-420. 
109 Zweck im Recht, vol.i, pp. 200, 201. 112 Jbid., vol. i, p. 461. 


So 


Four German Jurists 161 


where he shows that the purpose of such laws is purely social, 
that they are made for the sake of man, and that to explain 
them by attributing rights to animals would logically con- 
strain us all to become not only anti-vivisectionists, but vege- 
tarians.*** Quite in his best vein is the exhortation addressed, 
in the second volume, to students of ethics, not merely to in- 
vestigate their problem historically, but to start with com- 
parative philology and mythology, since these are “ the oldest 
and most trustworthy witnesses as to primitive popular views 
of morality.” 


The two together may be described as the paleontology of 
ethics. In the deeds of the gods, in all that they permitted 
themselves and were able to permit themselves without for- 
feiting in the eyes of the people their claim to veneration, 
there is preserved for us the most ancient judgment of hu- 
manity as to what is morally permissible. ... The gods 
are the petrified types of the prehistoric moral man.*** 


Not, perhaps, the most valuable, but certainly the most 
amusing pages in this volume are devoted to the teleology of 
fashion (die Mode). Fashion expresses, to him, the sup- 
posed interest of a social class — the class which commonly 
calls itself ‘“ society.”” It represents the constant effort of | 
this class to distinguish itself externally from the common 
herd.** In these days of democratic equality, of improved 
manufacturing processes and of facile and rapid production, 
the imitative herd presses so closely upon its betters that 
these are unable to maintain any semblance of differentiation 
otherwise than by constant change. All that they can do is 
to keep a little ahead of their pursuers. Hence, the rapid 
changes of modern fashion. 


113 [bid., vol. ii, pp. 141-144. Incidentally this argument shows how 
shallow is Macaulay’s famous fling at the motive which actuated the Puritans 
in suppressing bear-baiting. The Puritans were quite right. 

114 Jbid., vol. ii, p. 126. 

115 Zweck im Recht, vol. ii, pp. 230-241. Substantially the same theory 
was set forth a number of years ago in an editorial in the New York Evening 
Post on the question ‘“‘ Shall a Dude wear White Gaiters?” The identity of 
the theory will scarcely justify a suspicion of plagiarism: it was undoubtedly 
a case of the attainment of the same truth by independent thinkers. 


162 Four German Jurists 


But to revert to more serious matters. It is refreshing, in 
these over-sentimental days, to see the social value of force 
so fully recognized and so courageously proclaimed as we 
find it in this work. All law, all right, Jhering maintains, are 
based historically upon triumphant force: they are “ the 
policy of force.” Law is thus at first the mere servant of 
power. But “at the moment that power calls in law to 
announce its commands, it opens its house to justice, and 
the reaction of law upon power begins. For law brings with 
it as inseparable comrades order and equality.”** But 
not even in the hghest civilization does law become lord of 
power. “ Power, if need be, can exist without law: it has 
proved that it can. But law without power is an empty 
name.” **’ To-day, when we speak of the reign of law, 
we think of power as merely the servant of law; “but at 
times the relation is reversed; power casts off its obedience 
to law and itself sets up a new law.” Organized power re- 
volts against law in the coup d’état; unorganized power, 
in the revolution. 


It is easy for legal theory to condemn these acts; but these 
disturbances ought to lead our theorists to take a different 
view of the normal state of things. Law is not the supreme 
good: it is not itself an end, but merely means to an-end: the 
end is the existence of society. If society cannot exist under 
the established legal order, and if the law itself is unable to 
find a remedy, power intervenes and does what is de- 
manded.**® 


In case of necessity the law itself permits the individual 
to do with impunity what under other circumstances would 
be criminal. To meet exceptional emergencies, exceptional 
powers are constitutionally accorded to most governments: 
the proclamation of a dictatorship or of martial law, the sus- 
pension of existing law, the establishment of provisional law 
by executive ordinance, etc. These are “ safety-valves which 
permit the power of the state to deal with crises legally.” 


116° [bid.,; VOls1, Dp. 353: 117 [bid., vol. 1, p. 253. 
118 Zweck im Recht, vol. i, p. 250. 


Four German Jurtsts 163 


But the coup d’état and the revolution are no longer on 
legal ground: the law cannot license them without stultifying 
itself; from the legal point of view they are simply to be 
condemned. ... But higher than law stands life; and if 
in fact the situation is such as is here presupposed, if there 
is a case of necessity that narrows the issue to law or life, 
there can be no doubt as to the decision — power sacrifices 
law and preserves life. . . . Our judgment concerning such 
acts is determined by their success. Appeal is taken from 
the legal forum which condemns them to the tribunal of 
history. This has always been deemed by all people the 
higher, the supreme instance, and the judgment that is here 
rendered is final and decisive.**® 


That private rights have their historic basis in successful 
force, Jhering had asserted five years before (1872) in his 
Struggle for Law. He had also shown that the value attached 
by society to a legal rule, or by the individual to a legal right, 
is exactly proportionate to the importance of the social or 
individual interest which the law secures. But the central 
thought in the Struggle for Law is the duty of the individual 
to assert and enforce his rights, not only for the sake of his 
own manhood but for the sake of society. It is a lay sermon 
addressed to the conscience of his readers. Like most books 
that make an impression, the Struggle for Law is one-sided. 
In spite of the care with which Jhering confines his argument 
to cases where something more than money is at stake, — 
to cases where submission to wrong is sacrifice of personal 
dignity and of social interests, the book impresses the 
reader as a laus litium, a panegyric upon quarrelsomeness. 
But, however one-sided, the book is substantially true; and 
the side of truth which is here turned to the reader is one 
that the modern man needs to have shown him. To this 
fact and to the warmth and eloquence with which the duty 
of resentment and litigation is presented, the Struggle for 
Law owes its phenomenal success. In 1880 it had been 


119 [bid., vol. 1, pp. 251, 252. 


164 Four German Jurists 


translated into fourteen other languages,’”° and in 1891 it 
reached its tenth German edition. 

The Struggle for Law, if widely read, was also widely 
criticised; nor did Jhering’s critics confine themselves to his 
main theme. The position taken by him on minor points 
invited and aroused controversy. No part of the book 
attracted more attention, nor did any arouse more dissent, 
than his discussion of the case of Shylock vs. Antonio in The 
Merchant of Venice. Jhering asserted that the decision of 
Bellario-Portia was unjust. The plaintiff should have been 
thrown out of court because his contract for a pound of 
Venetian flesh was immoral. But if this was not possible 
at Venetian law, — and of course the poet was free to make 
the law of Venice such as suited his dramatic purpose, — 
Shylock should have had his pound of flesh. He should 
have been allowed to take a trifle more, if the excess was 
due to a pardonable error of judgment; he could certainly 
take as much less as he chose; and he was entitled to as 
much blood as would naturally flow in the course of the 
operation: It was grossly unjust first to recognize the valid- 
ity of his contract and the lawfulness of his claim, and then 
to avoid the contract and defeat the claim by such wretched, 
pettifogging technicalities as those to which the court re- 
sorted — technicalities which the crude and formalistic code 
of the XII Tables, in providing for the distribution (7m partes 
secare) of the body of the delinquent debtor among his 
creditors, seems to have intended to bar by the clause: 
“Si plus minusve secuerint, sine fraude esto.” *** | 

It is not difficult to see how Jhering was led to take this 
position. He was insisting upon the solidarity of law and 
right — upon the necessity, for the maintenance of law, 
of the enforcement of private rights; and nowhere in litera- 
ture was a more energetic expression of this idea to be found 
than that which Shakspere put into the mouth of Shylock: 


This pound of flesh, which I demand of him, 
Is dearly bought, is mine, and I will have it. 


120 Kampf ums Recht, preface to sixth edition. 
121 Tbid., 6th ed., pp. 38, 59. 


Four German Jurists 165 


If you deny me, fie upon your law! 
There is no force in the decrees of Venice. 


Jhering was also exalting the duty of the individual to assert 
his rights; and nowhere in history or fiction could he find 
a person more bent upon this course than Shylock. But in 
order to make of Shylock a proper champion, it was abso- 
lutely necessary to insist that he was in the right. In order 
to make of him a sympathetic figure, Jhering has to go 
further, and to import into Shakspere’s comedy the es- 
sentially modern view that Shylock is the type of his wronged 
and flouted race; “ of the medieval Jew, that social pariah, 
who cried in vain for law.” 


The tremendous tragedy of his fate does not lie in the 
fact that law is denied him, but in the fact that he, a Jew of 
the middle ages, has faith in the law — one may say, just 
as if he were a Christian —a faith in the law that is firm 
as a rock, that nothing can cause to waver, and that the 
judge himself strengthens, until the catastrophe breaks upon 
him like a thunderbolt, shaking him out of his dream and 
teaching him that he is nothing but the outlawed Jew of 
the middle ages, who gets his right in being swindled out 
Grits? 


Jhering’s view of this case has met with little sympathy. 
It has been criticised both from the literary and the legal 
point of view. Of the many answers that have been made 

by lawyers, I single out for mention that of Kohler.’”* He 
agrees with Jhering that the decision is technically indefensi- 
ble, but maintains that it is nevertheless just. It is simply 


122 Kampf ums Recht, 6th ed., p. 50. 

123 Kohler, Shakespeare vor dem Forum der Jurisprudenz (1883), pp. 
3 et seqg., 71 et seg. This is a curious book, too littl known to English 
readers. The author has gained the conviction by “ prolonged juristic and 
esthetic studies’ that the English poet possessed “an almost superhuman 
power of intuition,” by virtue of which he was able to penetrate “ the most 
secret recesses of legal history, as of history in general.” He discusses The 
Merchant of Venice from the point of view of the law of debt, Measure for 
Measure from that of deswetudo and pardon. Hamlet depicts the conflict 
between the custom of blood revenge and the more advanced morality which 
leaves vengeance to God and penalty to the state. A closing section is de- 
voted to the legal material in the other plays. In the book as a whole there 
is a great deal more law than Shakspere, and a vast if somewhat hetero- 
geneous collection of information about early law in general. 


166 Four German Jurists 


a case of a correct decision on wrong grounds. Such de- 
cisions, he urges, are especially common where the develop- 
ment of the law has been outstripped by the development of 
ethics. That was the case, clearly, in the Venice of Shak- 
spere’s imagination. The harsh law of debt, which sub- 
jected the delinquent debtor completely to the power of 
his creditor, was still law, but it no longer corresponded to 
the contemporary sense of right. Shylock, in attempting to 
utilize the law for purposes of vengeance, brought the 
antithesis between the law and the moral sense of the com- 
munity to distinct consciousness, and placed upon the old 
rules a strain that they could no longer bear. They give way, 
and a new and milder law appears — not yet clearly for- 
mulated; attained, indeed, by false reasoning and untenable 
distinction; but capable of logical formulation in the further 
process of judicial interpretation. 

To an outsider, this explanation of Kohler’s seems so 
thoroughly in the line of Jhering’s own thought as revealed 
in many passages of his legal-historical writings, that one is 
tempted to wonder whether Jhering would not have accepted 
it if the Struggle for Law had been written by a third person. 
Since, however, the position assailed by Kohler was his 
own and not another’s, he came to its defense in a note ap- 
pended to his seventh edition, in which he carried the war 
into the enemy’s country, and made merry with Kohler and 
his methods of studying legal history. To this counter- 
attack, Kohler responded, with a Nachwort which, I be- 
lieve, was the last word in this controversy. In this charac- 
teristically academic interchange of incivilities, the only fresh 
point brought out was Jhering’s insistence that a definite and 
complete judgment had been rendered in Shylock’s favor 
before any information was given him touching the con- 
sequences of a miscalculation in weight or of incidental blood- 
letting, — that his right was not denied in the judgment, but 
frustrated when it came to the execution of judgment, — 
while Kohler insisted that the utterances of Portia, from 
‘““A pound of that same merchant’s flesh is thine” to 


Four German Jurists 167 


“Thou diest, and all thy goods are confiscate,” constitute a 
single original and integral judgment. One cannot help won- 
dering what the poet would have made of this entire contro- 
versy: whether he would have been more surprised at learn- 
ing that The Merchant of Venice was a tragedy, as Jhering 
asserts, or at being informed by Kohler that he had divined 
all the subtle modes in which progressive views of ethics 
obtain recognition in the application of law. 

It was Jhering’s original plan to conclude his Teleology 
(after he should have worked through the fields of manners 
and morals) with a detailed demonstration of the value of his 
point of view for the comprehension of law, both as regards 
its general principles and its more important institutions. 
His Possessory Intention, as he explains in the preface,’* 
represents a partial realization of this broader plan: it is 
an expanded section of the projected final chapter of the 
Teleology. ‘That is the significance of its sub-title: Also a 
Criticism of the Dominant Juristic Method. 

For twenty years (1868-1888) Jhering had devoted his 
best energies to the task of elaborating and illustrating his 
philosophy of law. The work in which he undertook to 
develop his system was indeed left unfinished, but the sys- 
tem itself was clearly set forth. Against the will as the 
source of law and of rights he had set the goal of the will, the 
end to be attained. Against the individual interest he had 
set, as the creator of the whole social order, the social in- 
terest. Against the theory of the historical school, which 
treated all legal development as a process not merely organic 
but largely unconscious, he had insisted on the reflective 
and conscious character of legal progress, even in its early 
stages. He had not, however, fallen into the error of assert- 
ing that all law is consciously created to attain ends dis- 
tinctly discerned: the ends which society strives to realize 
are not all “ subjective,” z.e., consciously formulated; “ ob- 
jective” ends play a great part. 

It is not easy for men of English blood and traditions to 


124 Besitzwille, pp. x, xi. 


168 Four German Jurists 


realize the necessity of the task which Jhering had under- 
taken. The point of view which we naturally take was 
expressed, a year or so after the appearance of the first 
volume of the Teleology of Law, by an American fellow- 
student in Gottingen. “Is it not odd,” he said to me, 
“that Jhering should be writing a big book to prove what 
no English or American lawyer would dispute?” A few 
months earlier, however, I had received striking evidence that 
what is self-evident to an Anglo-Saxon is not necessarily 
self-evident to a German. I had had a conversation at 
Berlin with an elderly German friend —a judge, for many 
years, of the highest Prussian appellate court. This gentle- 
man had shown a kindly interest in my studies and plans, 
and to him I spoke of my intention to spend the following 
semester at Gottingen, for the sake of hearing Jhering. “ For 
heaven’s sake,” said the judge, “ don’t do it. Jhering will 
mix you all up. His Geist was a clever book, but his Zweck 
is all nonsense [dummes Zeug].” 

During the years devoted to his Teleology and to the 
books that branched out from that main stem, Jhering did not 
devote all his leisure to fighting philosophy with philosophy. 
He recurred more than once to his earlier and more con- 
genial mode of attack — ridendo dicere verum. ‘The author- 
ship of the Confidential Letters had ceased to be a secret, and 
a second series had been solicited and promised as early as 
1872. In 1880 Jhering redeemed his pledge in a series of 
‘“ feuilleton ” articles, as he himself described them, which 
were published at Vienna in the Juristische Blatter under the 
running title: Chats of a Romanist.’*° These essays dealt 
entirely with questions of Roman legal history; and while 
the practical point of view, the consideration of the “ end ” 
subserved, is constantly utilized for the better understanding 
of the rules discussed, the Chats are more akin to Jhering’s 
Spirit of the Roman Law than to his Teleology; they rather 
form a part of his constructive work in legal history than 


125 Plaudereien eines Romanisten. Reprinted in Scherz und Ernst (1883), 
pp. 121-243. 


Four German Jurists 169 


of his polemic against abstract jurisprudence. But when, 
after the appearance of the second volume of the Teleology, 
he was urged to republish both the Letters and the Chats, he 
rounded them into a book — Jest and Earnest — by adding 
new matter,’ in which he returned to the theme of the 
Letters. Employing the time-honored machinery of the 
dream, Jhering depicts himself as a newly disembodied 
spirit, transported by the double title of Romanist and theo- 
rist to “the juristic heaven of concepts.” This lies far be- 
yond the solar system, in outer darkness. ‘‘ The sun,” his 
guide informs him, “is the source of all life, but concepts 
cannot accommodate themselves to life: they need a world of 
their own in which they may exist for themselves solely, re- 
mote from all contact with life.” The obscurity of this 
heaven is no disadvantage to the theorist: ‘‘ even on earth his 
eyes have been trained to see in the dark.”’ Candidates for 
admission must first pass through quarantine for the removal 
of any trace of earthly air, and they receive, if necessary, a 
draught from a spring whose waters efface all earthly points 
of view, — but Jhering is assured that “‘ very few who apply 
for admission here find it necessary to make use of it.” The 
applicants come chiefly from Germany, and thence only of 
late years: Puchta was the first. They are for the most 
part Romanists, but Germanists and criminalists are also 
received, ‘‘ provided they share with the Romanists their 
faith in the sovereignty of concepts.” Professors preponder- 
ate, but there are also “‘ members of your Imperial Diet and 
your Houses of Deputies, whose belief that the world is ruled 
by abstract principles has remained, thank God, unshaken 
by your Bismarck.”’ An examination is required for admis- 
sion: it is indispensable that the candidate show ‘“ capacity 
to construct a legal institution purely from the texts or from 
the abstract concept, without any consideration of its real 
practical significance.” Savigny very nearly failed: he was 
admitted, however, on the strength of his essay on possession, 


126 Tm juristischen Begriffshimmel, ein Phantasiebild.— Wieder auf 
Erden, — wie soll es besser werden ? — Scherz und Ernst, pp. 247-383. 


170 Four German Jurists 


and because, by opposing codification, he had aided in main- 
taining Roman law in Germany. Arndts and Wachter were 
both rejected: Wachter’s mind “ moved always in the lower 
region of the practical” ; and although Arndts had based his 
Pandects on Puchta, “‘ he had made too many concessions to 
the needs of practical life at the cost of pure theory.” 

Before attempting the examination, Jhering finds that it is 
admissible to inspect the abode of the theorists, and of this 
opportunity he gladly avails himself. He examines the pal- 
estra, or field for gymnastic exercises in construing, inter- 
preting, efc.; the legal-historical academy, where defective 
inscriptions and corrupt texts are “ restored’ ; the museum 
of pure concepts (which has no doors, and to enter it is nec- 
essary mit dem Kopf gegen die Wand zu rennen) ; and the 
pathological cabinet, which displays these same concepts as 
they have been defaced and distorted on earth from the days 
of the Roman jurists down, through considerations of ex- 
pediency. In the examination of these and other objects of 
interest, and in conversation with his guide and other blessed 
spirits, Jhering finds full opportunity to satirize his abstract 
contemporaries and their theories. Convincing himself, be- 
fore long, that he does not belong in this heaven, Jhering 
finds that two other localities are open to him — the heaven 
of the legal philosophers, where reason takes the place of 
abstract ideas, and the heaven of the practitioners. The 
former is the abode of the advocates of natural-law doc- 
trines; and the information which Jhering receives con- 
cerning the examination held there and the confession of 
faith exacted of all applicants shows him that he cannot 
hope for admission to that paradise. He decides, accord- 
ingly, upon the heaven of the practitioners, and is conducted 
thither. As he knocks at the gate, he awakes. 

In a closing section, from which I have already made cita- 
tions,**’ Jhering discusses seriously the evil results of an 
over-abstract jurisprudence, its causes and its remedies. The 


127 Political Science Quarterly, vol x, pp. 687 (December, 1895), et seq. 
Supra, pp. 133 et seq. 


Four German Jurists G71 


chief cause he finds in an undue separation of theory and 
practice. His remedies are: that the university teachers of law 
be required first to pass a number of years in the practical 
work of the courts, as assessors; that the case system of 
instruction be more largely employed in the universities, and 
that participation in the Practica be required of the students; 
that in the state examinations less stress be laid upon written 
themes and more upon the oral examination, and that in the 
latter more weight be attached to the solution of concrete 
cases. He is speaking, of course, of the state examinations for 
admission to the judicial service and to the bar, not of the 
academic examination for the doctorate. Two changes sug- 
gested by others he emphatically disapproves. The law pro- 
fessors are not to combine practice with instruction, nor is 
the three-year course of academic study to be lengthened. 
Three years, he thinks, are enough if properly employed. 


Of the justification of Jhering’s crusade against abstract 
jurisprudence — of the necessity of such a reaction in Ger- 
many as he strove to produce — I have already spoken. The 
tendency to undue abstraction was of course at no time uni- 
versal: there were contemporaries of Jhering as practical as_ 
he himself could desire, and among them were professors 
(like Eck) who strove always to impress their students with 
the importance of the practical point of view. But the tend- 
ency which Jhering combated was certainly dominant, and 
Jhering made himself the most prominent champion of the 
opposite movement. 

Of the effect of his opposition it is hard to form a definite 
judgment. That German legal science is to-day more practi- 
cal than it was thirty years ago, no one who has followed its 
development ever so cursorily can for a moment question. 
But how far this change is due to Jhering’s efforts, and how 
far it is due to the pressure of practical legislative problems 
in the new German Empire, is a question on which it would 
be rash to express an opinion. 


172 Four German Jurists 


VI 


Before Jhering opened his attack upon abstract jurispru- 
dence, he had acquired a reputation that extended far be- 
yond the boundaries of the fatherland by his great work upon 
the Spirit of the Roman Law in the Different Stages of its 
Development. As a study of the evolution of the Roman 
law, the work may be regarded as a product of the impulse to 
historical investigation given by Savigny, and in the cata- 
logues of the booksellers it is usually ranged among the works 
on Roman legal history; but in its spirit and method this 
book represented, as we have already noted,*** a reaction 
against the purely national view of legal evolution held by 
Savigny and his school, and it bore little resemblance, in its © 
general plan or in its details, to any previous history of the 
Roman law. | ) 

It emphasized the universal side of legal evolution, and 
found the significance of the Roman law in the great place 
which that law occupies in the legal history of the world. It 
discarded the periods commonly recognized by writers on 
Roman legal history, and substituted three ‘“‘ stages ”: the 
pre-Roman or Indo-European, the national Roman, and the 
universal Roman.’ In the first volume (Introduction and 
Book I), Jhering undertook to show what the Romans 
brought with them into their separate national life. In the 
remainder of the work he meant to show what they made of 
their heritage, and with what rich interest they gave it back 
to the world. In the three additional volumes which he com- 
pleted he carried out but a small portion of the original 
scheme. He did not even finish his second “ book ” on the 
‘specific Roman system ” (ius civile). Its first “section ” 
(Abschnitt), on the “ general characteristics of the system,” 
extended through the whole of the second and third vol- 
umes **° and nearly through the fourth volume. Its second 


128 Political Science Quarterly, vol. x, pp. 660, 675-678. Supra, pp. 115, 
121-124. 

129 Geist des romischen Rechts, vol. i, pp. 81-85. 

180 Designated as part II, divs. 1 and 2. 131 Part III, div. 1. 


Four German Jurists Ts 


‘section,’ which was to deal with the special rights recog- 
nized in the older private law, was carried only so far as was 
necessary to complete the discussion of the general concep- 
tion of a right,’*’ and there the work stopped. As we have 
already seen,*** the examination of this special question 
carried him out of legal history into legal philosophy and 
eventually into sociology. The Spirit of the Roman Law was 
left unfinished that he might write his Teleology of Law, and 
this, in its turn, so grew upon his hands that it was never 
finished. 

The proposed third book of the Spirit of the Roman Law, 
which was to have treated of the development, by the Ro- 
mans, of a general system of private law for the entire ancient 
world (ius gentium), and in which the characteristics of this 
universal law were to have been examined, was accordingly 
never begun — a fact which no admirers of Jhering can more 
keenly regret than those whose privilege it was to hear his 
lectures upon Roman legal history at Gottingen, and who 
therefore know, in part at least, how fresh and suggestive 
would have been his treatment of this period. 3 

The Spirit of the Roman Law is a work so much better 
known than any of his other writings (except, perhaps, his | 
Struggle for Law), and so much has been written about it, 
that it is hardly needful to do more than indicate in what 
respects it marked an epoch in legal historiography. It was 
one of the first important attempts to apply to the study of 
legal evolution the method of comparison. In describing the 
‘original elements”’ of the Roman law he thus gave the 
world a treatise on primitive law in general. In describing 
the Roman conceptions of liberty and equality, and the way 
in which these were realized in the national law, the com- 
parison with other systems was so employed as to make this 
second volume an important contribution to the philosophy 
of law. The discussion, in the following volumes, of the 
technique of the Roman law and the methods of the early 


. 132 Cf, Political Science Quarterly, vol. x, pp. 691, 692. Supra, pp. 134, 135. 
133 [bid., vol. xi, p. 290. Supra, pp. I51, 152. 


Ng cae Four German Jurists 


Roman jurists broadened, in like manner, into a discussion 
of the function and the methods of all technical jurispru- 
dence. The problems which he set before himself in his 
Teleology are not more universal, nor are they treated in any 
broader way, than those which engrossed him in the earlier 
work. 

The point of view from which the work was written and 
the method employed make it unique among histories of the 
Roman law. All that is peculiarly national in the Roman law 
—all that is not found in other systems and cannot be util- 
ized for comparison—had for Jhering but a secondary 
interest. Numerous facts that are set forth in the briefest 
compendiums of Roman legal history are therefore not even 
alluded to in these four volumes. ‘These facts appear in the ~ 
ordinary compendium because they facilitate the compre- 
hension of the law books of Justinian; they were ignored by 
Jhering because the matters they illuminate are not matters 
of universal human interest. The ordinary legal historian, 
as Jhering himself said, regards history as the handmaid of 
dogmatics.*** Jhering’s mode of writing legal history, as 
Windscheid indicated years afterwards in his inaugural 
address as rector of Leipzig University, takes the subject 
out of legal science in the strict and usual sense, and makes 
it culture-history. 

It is of interest to compare Jhering’s work in primitive law 
in the first volume of the Spirit with the independent and 
nearly contemporaneous work of Henry Sumner Maine. 
Both of these men used the comparative method, and both 
wrote from the point of view of the social historian rather 
than from that of the legal historian. Both worked with a 
narrower basis of induction — with less knowledge of primi- 
tive law — than their successors in the same field, and the 
theories of each have been largely modified by later investiga- 
tions; but both possessed a literary gift, a charm of style, 

134 Geist des romischen Rechts, vol. i, p. 59, note. Cf. Entwicklungsges- 
chichte des romischen Rechts (1894), ‘“ Einleitung,” p. 9: legal history is 


“the Cinderella in the house of the law, tolerated there only because she 
carries wood and water for the household.” 


Four German Jurists 175 


that won for them a wider circle of readers than any of their 
successors have yet obtained. 

Of early Roman law Maine knew something, but far less 
than did Jhering. Of Hindoo law Jhering knew far less than 
did Maine. Of English law Jhering knew little: I do not 
think that he read English with any ease. But through the 
labors of the Germanists Jhering had at his command a 
knowledge of early Teutonic law, of which the English law is 
but a transplanted shoot, that far outweighed Maine’s advan- 
tage in his knowledge of early English law. In reality, then, 
the only advantage that Maine had over Jhering was his 
greater knowledge of the laws of India. And it may be seri- 
ously questioned whether, for the study of Indo-European 
beginnings, this was not really a disadvantage. Maine clearly 
believed that the customs and conceptions revealed in the 
oldest literature of India were, if not precisely primitive, at 
least more primitive and closer to the common starting-point 
of the Indo-European peoples than the earliest known cus- 
toms and conceptions of the Teutons or Slavs. We are in- 
clined to think to-day that the reverse is true — that the 
social relations of the Hindoos, at the moment at which their 
institutions first become clear to us, had developed along lines 
largely foreign to the oldest Aryan life; and that their civi- 
lization had become far more complex and artificial than that 
of the wandering ancestors of the great European nations. 
It was the influence of the Hindoo law that led Maine to 
assert the really primitive character of that household organ- 
ization which he found in India and also in early Rome — 
an assertion now questioned by the majority of investigators 
—and to develop the entire political organization of the 
Indo-European peoples, the whole sacerdotal system, the 
administration of criminal and civil justice and the resultant 
formulation of criminal and civil law, gradually and 
smoothly, without break or jar of innovation, from the one 
fact of the household authority of the pater familias. 

Jhering apparently assumed the primitive character of 
manus-marriage, agnatic relationship and patria potestas, — 


176 Four German Jurists 


certainly, that these institutions were firmly established when 
the separate national existence of the Romans began,**® — 
but he ascribed no such wide-reaching results as did Maine 
to the headship of the primitive house. To Jhering nothing 
in the earliest Roman state was modeled on the family save 
the gens. The curiae were military divisions constructed by 
the king. Kingship was not an outgrowth of family or clan, 
but a new thing superimposed upon the gentes by stress of 
foreign war. Kingship had built the new state of the royal 
period upon the partial wreck of the gentile state. Criminal 
law, to Jhering, began as lynch law: it was the vengeance 
taken by the whole people for an injury to the whole people. 
In its further development king and priests cooperated. The 
king first punished infractions of military discipline, and 
became gradually a keeper of the peace, because internal 
peace was necessary for successful foreign war. The priests 
slew the wrongdoer or drove him out of the city when his 
wrong was regarded as asin. They slew or expelled him be- 
cause otherwise the wrath of the gods would be visited upon 
the whole people. Over ordinary private disputes neither 
king nor priest, in Jhering’s opinion, had originally any juris- 
diction. The wronged party, or the wronged household, 
righted itself by self-help. If the wrong was obvious, if the 
right invaded was clear, self-help was regularly effective, be- 
cause the wronged party had the sympathy and support of 
the community. Where the wrong was questionable because 
the right was unclear, self-help was inadequate. It was nec- 
essary, in such cases, that all doubt should be dissipated. 
At this point the civil jurisdiction of the king or the priest 
came in, but not at once, nor because of any original right of 
king or priest to interfere. There were various methods by 
which the parties settled their own disputes. One of these 
was arbitration; and out of the practice of referring disputes 
to king or priest grew gradually the right of priest and king 
to exercise jurisdiction over disputants. 


135 Bernhoft, Staat und Recht der romischen Konigszeit (Stuttgart, 
1882), believes that these were patrician institutions, not originally shared 
by the plebeians. 


Four German Jurists 77 


This last point is perhaps doubtful; but that Jhering’s 
picture of early society is, as a whole, far truer than Maine’s, 
will hardly be questioned by any one who has followed the 
later investigations in this field; and where the conjectures 
of the one writer or the other have been neither substanti- 
ated nor disproved, Jhering’s theories seem to me to be at 
least better working hypotheses than Maine’s. 

As regards the power of the two-writers to attain and 
formulate generalizations of the widest sort — to grasp and 
state the laws of legal evolution itself — Jhering was unques- 
tionably superior. Maine’s most famous single generaliza- 
tion, that the progress of human society is from status to con- 
tract, is but a partial expression of the rule laid down by 
Jhering, that law begins as a system of one-sided and un- 
limited powers, and gradually becomes a system of jural rela- 
tions with limited powers and definite duties on each side. 

Jhering’s greater success in reconstructing the remote past 
of European civilization was partly due to the fact that early 
German customs were really more primitive than those indi- 
cated in the oldest literature of India. But it was also due in 
large part to an extraordinarily quick and sympathetic im- 
agination. He thought himself or felt himself back into 
primitive life until it all became as real to him as the life of a 
little German university town in the nineteenth century 
under a wise and kindly bureaucracy. It may be questioned 
whether the earlier conditions, as they took body in his fancy, 
did not grow more attractive to him than those by which he 
was surrounded. It is certain, I think, that if he had never 
depicted, first to himself and then to his readers, the beauties 
of self-help as he did in the first volume of his Spirit, he would 
never have written the Struggle for Law. 

In the Spirit, the evolution of law is regarded, primarily at 
least, as a psychological process. To comprehend it, the stu- 
dent must reconstruct for himself not merely the social en- 
vironment but also the social mind of the people and period 
with which he is concerned. And this Jhering continually 
strove to do. Other students of legal history have made use 


178 Four German Jurtists 


of myths, language, symbols, etc., to help them in the recon- 
struction of early institutions, but few have used these aids 
just as Jhering did. He has put his method in a sentence. 
He declares that ‘‘ the unuttered thoughts ” that underlie a 
legal institution 


have not infrequently obtained a veiled and mysterious but 
pregnant expression in myths, in etymology or in symbols. 
At times the genius of the people makes a confession in the 
dreaming state that we should never have lured from tt tn tts 
waking moments.*** 


In opposition to many legal historians, however, Jhering 
was not inclined to regard all legal development, even in 
primitive society, as an unconscious process. Even primitive 
men may agree, from motives of policy, to establish a novel 
institution or to observe a new rule. We have seen that in 
some matters in which Maine assumed evolution without 
conscious innovation, Jhering assumed changes which, if his 
explanation be true, must have been in large degree reflective. 

It is interesting, again, to compare Jhering’s explanation 
of early Roman institutions with those given by another bril- 
liant and suggestive writer, Fustel de Coulanges. In The 
Ancient City, religion is treated as the creator of the whole 
legal order. Institutions and customs appear to be produced 
by religious beliefs. Now Jhering in no wise underrated, I 
think, the extraordinary influence of religion in early law; 
but to him religion was obviously a power that sanctions 
rather than a power that creates. Institutions came into ex- 
istence, rules are established, because they are of social ad- 
vantage. Once established, they come to be regarded as 
divine; and standing under the protection of the gods, they 
enjoy the tremendous sanction of religious fear. Religious 
ideas may easily affect the form of legal institutions, but 
rarely their substance. Religious ideas may modify the 
operation of a rule, and may often keep it alive after the 
social reason which justified it has ceased to exist; but reli- 


136 Geist des romischen Rechts, vol. i, p. 46. 


Four German Jurists 179 


gion alone, has rarely created important rules of conduct, 
nor does religion originally endorse such rules without regard 
to their social utility. The gods are not so unreasonable.**’ 

In the remaining portions of the Spirit of the Roman Law, 
in which Jhering dealt with the specific national law of Rome 
as partially formulated in the Twelve Tables and as de- 
veloped by the older Republican jurists, less use was made of 
the comparative method. The legal system that he most 
needed for purposes of comparison, the legal system that 
bears the closest relation in its spirit and in its methods to 
the Roman ius civile, is the English common law before it 
was modified by the equitable jurisdiction of the English 
chancellors. What little Jhering knew of this law had shown 
him its similarity to the Roman national law —a similarity 
that is less of substance than of method, and is due to the fact 
that the two systems represented the same stage of legal 
evolution. Jhering felt, and was never weary of declaring, 
that the hard-headed, unimaginative, technical English com- 
mon-lawyers were far more like the jurists of the Roman 
republic than are the modern civilians of continental Europe. 
But he knew too little of the English law to make much use 
of it. When his work shall be translated into English, it is — 
devoutly to be hoped that the translation may be made by 
some one familiar with English legal history, and may be 
copiously annotated with references to the English common 
law. 

When the subject permitted it, however, — when, for ex- 
ample, he was discussing the general problems of legal equal- 
ity and personal liberty, as a prelude to an examination of 
the solutions which these problems found in the older Roman 
law; and when he was considering the value of technical 
forms of action and rigid forms of contract, etc., before de- 


137 In his Vorgeschichte der Indoeuropdaer, Jhering devoted several pages 
(64-71) to a criticism of the theories of Fustel de Coulanges. It is, of course, 
in the family organization that the connection between religion (ancestor- 
worship) and law is closest; and even here, according to. Jhering, “ the sacra 
do not determine the constitution of the family; on the contrary, the latter 
determines the former.” 


180 Four German Jurists 


scribing the forms of the ius civile, — Jhering drew con- 
stantly upon modern European law; and even in the descrip- 
tion of the Roman institutions and forms, modern law, if not 
directly available for illustrative purposes, was utilized for 
purposes of contrast. 

In speaking of Jhering’s change of attitude between 1857 
and 1860 — a change which he himself described as an Um- 
schwung — and of his new zeal, manifested after 1860, for 
“practical ’’ jurisprudence, I have already indicated, in a 
previous paper,*** that Jhering’s earlier work was by no 
means so unpractical as his own descriptions of his conver- 
sion imply. Throughout the Spirit of the Roman Law, from 
the discussion of the “‘ physiology ” of law in the first volume 
to the paragraphs on “ juristic economy ” in the last,*° there 
is constant insistence upon the practical purpose and the 
practical operation of legal institutions and rules — upon the 
relation of law to life. What Professor Max Miller has said 
of Jhering’s work in legal history is as true of the first vol- 
ume of the Spirit of the Roman Law, published in 1852, as 
of the work upon the prehistoric institutions of the Indo- 
Europeans, published after Jhering’s death. 


It was the leading principle of all his brilliant researches to 
discover in everything that has become formal its original 
substance, in what seems unmeaning its true purpose, in what 
is irrational its original raison d’étre.**° 


And in the later volumes of the Spirit there are whole chap- 
ters, notably those upon legal forms, that might have been 
written for the Teleology of Law. 

When the last installment of the Spirit was pubhebeds in 
1865, Jhering had become engrossed in his polemic against 
abstract jurisprudence, and for many years he published but 
one other work upon legal history. This was The Element 
of Fault in Roman Private Law. It is a study of the mode 

138 Political Science Quarterly, vol. x, pp. 687, 688. Supra, pp. 133, 134. 

139 Geist des romischen Rechts, vol. i, pp. 48-58; vol. iv, pp. 236-301. 

140 Cosmopolis,.September, 18096. 


141 Das Schuldmoment im rémischen Privatrecht (1867). Reprinted in 
Vermischte Schriften juristischen Inhalts (1879). 


Four German Jurists ISI 


in which society gradually differentiates the malicious from 
the accidental injury, the willful invasion of a right from the 
honest interference of the person who believes himself to be 
in the right. As in the Spirit, the method of treatment is 
comparative: various systems of primitive law are examined 
to show that early society punishes the overt act without re- 
gard to the mental attitude of the actor. It is a study, 
further, of the gradual elaboration and refinement, in the 
Roman law, of the conception of fault, down to the final dif- 
ferentiation of malice from negligence, and of gross from or- 
dinary negligence. Incidentally, it is an important contribu- 
tion to the history of remedies, showing the priority of 
actions of tort in many relations that are ultimately regarded 
as contractual.*** It should be added, as a supplement, to 
any translation that may be made of the Spirit. It is, in 
fact, a chapter of the unfinished third part of that work. 

In the Chats of a Romanist, published in 1880, Jhering 
returned, as we have already noted,’* to the field of Roman 
legal history; and in his Possessory Intention (1889) there 
are two chapters, the seventh and the eighth, that are purely 
historical *** and that rank with the best parts of the Spzrit. 
But through all the later years of his life it was the comple- . 
tion of the Teleology rather than the continuation of his his- 
torical work that Jhering had really at heart.**° He had 
undertaken, however, to write the history of the Roman law 
for Binding’s Systematic Handbook of German Jurispru- 
dence,**° and after the completion of his Possessory Intention 
he addressed himself, at the age of seventy-one, to the fulfill- 
ment of this promise. It was his intention to begin, as in the 
Spirit of the Roman Law, with a description of the Indo- 
European institutions which the ancestors of the Romans 
brought with them into Italy, but this was to be a mere 
sketch, much briefer than the first book of the Spirit. Like 


142 Vermischte Schriften, pp. 187 et seq. 

143 Political Science Quarterly, vol. xi, pp. 306, 307. Supra, pp. 168, 169. 

144 Tbid., pp. 285, 286. Supra, pp. 146, 147. 

145 Vorgeschichte der Indoeuropder, Vorwort des Herausgebers. 

146 “ Systematic Library ” would be a more descriptive title, since the 
plan provides for forty-seven volumes by twenty-eight different jurists. 


182 Four German Jurists 


every other task that Jhering took in hand, this grew rapidly 
to unforeseen proportions. Nearly forty years had elapsed 
since the first volume of the Spirit was written, more than 
twenty since the last edition of that volume was printed. 
Philological research had thrown much new light upon the 
civilization of the primitive Aryans. The common heritage 
of the Indo-Europeans had shrunk under investigation: the 
Aryans had been thrown back upon a lower plane of social 
development than had been previously assigned them. Many 
institutions and customs that seem common to all the Eu- 
ropean members of the family were obviously developed 
after their separation from the original stock. What then 
were the conditions under which these changes were wrought 
— changes that have differentiated the European man from 
his Asiatic kinsman? Such was the question that primarily 
forced itself upon Jhering’s mind. But then came further 
questions. What were the influences that differentiated the 
Greeks from the Romans? What were the influences that 
differentiated these nations from the other peoples of the Eu- 
ropean branch, and gave them a lead of more than a thousand 
years in the march of civilization? Was it simply the dif- 
ferent character of the countries in which each people settled 
— the influence of topography, climate, etc.? Or. was it the 
earlier contact of the Greeks and Italians with the civilized 
peoples whom they found on the other side of the Mediter- 
ranean — the Egyptians and the Phoenicians? What was 
the origin and what the character of the Semitic civilization? 
The result of all these queries, which it was impossible for a 
scholar of Jhering’s temperament to brush aside, was, as his — 
literary executor, Victor Ehrenberg, tells us,**’ that he de- 
voted the last two years of his life (1890-1892) to the study 
of the Babylonian civilization, and that the very last thing 
that he wrote was a criticism of Renan’s explanation of the 
difference between the Aryan and the Semite.**® 

Of the promised history of Roman law there were found 


147 Vorgeschichte der Indoeuropder, Vorwort des Herausgebers. 
148 [bid., pp. 288-305. 


Four German Jurists 183 


among Jhering’s papers only the beginnings — an introduc- 
tion on the task and method of legal historiography, and a 
chapter on the organization of the early Roman household. 
These were published under the title which Jhering had se- 
lected, History of the Evolution of the Roman Law.\*® In 
his description of the Roman household, as in all his writings 
upon Roman history, there is something new. In this case 
it is his identification of familia, in the oldest texts, with res 
mancipi, and pecunia with res nec mancipi. The introduc- 
tion is of special interest: it gives Jhering’s latest views not 
only as regards the way in which legal history should be writ- 
ten, but as regards the way in which law itself is evolved. 
Legal history, he says, should not be merely descriptive; it 
should not content itself with telling what happened, what 
changes occurred; it should discover the reason, the ‘‘ why,” 
of the facts described, and the forces that underlie and deter- 
mine the changes. Nor should legal history content itself 
with this alone: it should show the causal relation between 
antecedent and subsequent facts, how changes begot other 
changes, — it should be a history of the evolution of law. As 
such, legal history has a right to exist for itself, as an inde- 
pendent science. It should emancipate itself from the idea 
of practical utility to the lawyer. 

In seeking to discover the influences which: make and 
modify law, the historian should turn his attention first to 
the facts of social life. He will find that all law is begotten 
by social necessities. These necessities are first perceived by 
the most enlightened members of the community, and it is 
through their influence upon the mass that new institutions 
are established, new rules recognized. Law is made, even in 
early society, by the conscious action of the natural leaders 
among men, as a path is broken through the wilderness. The 
line of conduct which they have laid out is followed by 
the mass and becomes customary, as the path opened by 
the pioneer becomes a trodden way. 

The theory of Savigny and his followers that law is an 


149 Entwicklungsgeschichte des romischen Rechts (1894). 


184 Four German Jurtsts 


emanation of the popular mind, an expression of the popular 
sense of right,’°° is no explanation of the genesis of law. It 
is an abandonment of the attempt to discover any explana- 
tion. Moreover, the theory has no warrant in history. The 
popular sense of right is not anterior to law: it is begotten of 
law. Even the most advanced thinkers regularly regard that 
which is legal in their day as rightful, — Plato himself so 
regarded slavery, — and the masses are incapable of any 
other view. If at any time the popular sense of right seems 
to emancipate itself from law and to produce changes in the 
law, — which only happens when civilization and law have 
reached a relatively high stage of development, — what oc- 
curs is usually this: a few men, who stand above their fellows, 
have discerned social needs or interests to which the people 
are blind. These few gradually open the eyes of a majority 
of the people, or at least of a number sufficient to secure a 
change in the law; but it is not until the change has been 
made and the new law has long been established that the 
feeling of its justice becomes universal. This is the history, 
for example, of the abolition of slavery, of the abandonment 
of torture in criminal procedure, of the disappearance from 
the statute books of laws against witchcraft. 

When this is not true, when a new sense of right appears to 
develop and a change of the law is demanded on grounds of 
right, we notice that the demand comes from a special class, 
— that the cause of the demand is an interest, an injury to be 
avoided or an advantage to be secured; and that the feeling 
that the demand is just is really derived from the existing 
law. When the peasant demanded protection against ani- 
mals preserved for the chase, he asked only that the protec- 
tion which the law already gave to property should not be 
withheld from his property. When inventors and authors 
demanded protection, they asked only that the right of the 
laborer to the product of his labor, already recognized in the 
case of others, should be recognized in theirs also. 

150 Sense of right (Rechsgefiihl) should not be confounded by the English 
reader with moral sense (das sittliche Gefihl). It is the sense of right in 


those matters with which law has to do; it is the sense of justice or of equity, 
the jural instinct. 


Four German Jurists 185 


If, then, the popular sense of justice is derived from the 
established legal order, it is absurd, Jhering argues, to make 
that sense the creator of the legal order. 


Against the doctrine of the unconscious growth of law, I 
for my part assert, to express it for the nonce in all bluntness, 
the doctrine of its conscious making. The law is not an efflux 
of the sense of right, discharging its creative function naively 
under obscure impulse— that mysterious process which 
would cut off (and deliver the legal historian from) further 
investigation; it is, on the contrary, the work of human pur- 
pose and calculation, exerting themselves in every stage of 
' social development to find what is suitable. The history of 
law is the history of human thought in reference to the 
practical realization of the conditions of existence of the 
human community. In this sense all the law on earth has 
been made, and if it seems to have grown of itself, it is be- 
cause in many instances insight into the making is denied 
118.7" 


In examining Jhering’s first historical work we noted the 
beginning of a reaction against Savigny’s theory of the un- 
conscious development of legal custom,**? and here we have. 
the opposite theory set forth, as Jhering himself says, “ in 
all bluntness.”” It will be observed that there are open links 
in the chain of argument. We may admit that the general 
sense of justice is commonly in accord with the law, that a 
different and more advanced sense of justice is rarely to be 
found even among the best and wisest men, that law influ- 
ences through education the sense of justice, that the child 
‘““inhales,” as Jhering says, the spirit, of the law; but after 
making all these concessions we are not obliged to admit that 
the sense of justice is altogether the product of the law. 
‘With an equally careful choice of illustrations it would be 
easy to construct an equally plausible argument for the op- 
posite contention. The truth seems to be that the sense of 
justice and the law, developing side by side, exercise a reflex 

151 Entwicklungsgeschichte des romischen Rechts, Einleitung, p. 28. 


152 Above, p. 178. Also in Zweck im Recht. See Political Science 
Quarterly, vol. xi, pp. 305, 306. Supra, pp. 167, 168. 


186 Four German Jurists 


influence each upon the other, that each is partly the product 
and partly the producer of the other; and this truth Jhering 
himself has set forth in his Teleology. In the development of 
the sense of justice, he says, “ the objective and the subjec- 
tive, the internal and the external, stand in the closest rela- 
tion of reflex influence, each reciprocally conditioning and 
furthering the other.” *°° 

It will be noted also that in asserting that law is not the 
product of the general sense of justice, but the product of 
social interests, Jhering has treated the latter supposition as 
necessarily excluding the former, and has assumed that if 
law be the product of social interests it must be the product * 
of conscious purpose, of calculation. But it is possible to 
maintain that the general sense of justice is itself the product 
of social interests, keenly felt without being consciously for- 
mulated. And in fact this is a theory of the evolution of the 
sense of right which Jhering himself held, and which he 
constantly applied both in his historical and philosophical 
writings. In his Teleology it is not only the sense of right 
in jural relations that is thus accounted for, but also the 
sense of right in matters of eet and even the sense of 
propriety in social intercourse.” - 

Such self-contradictions are not infrequent with Tasco 
and he himself in a characteristic passage of his Jest and 
Earnest explains and, we almost say, justifies them: 


But, you ask, do I seriously mean this? Honestly, no. 
When it is a question of doing justice to the different sides 
of one and the same institution, it is my habit to think myself 
into the side which I am at the moment treating with a com- 
plete, deliberate and conscious one-sidedness — to fall in love 
with it, I might say, as if it were the only side worth consider- 
ing. When the other sides have their turn, I act in the same 
way; their predecessor is then wholly forgotten, as is not un- 
common when it is a question of falling in love; and so I am 
sure that none of them will receive less than its due.*”° 


153 Zweck im Recht, vol. i, p. 379. 

154 Political Science Quarterly, vol. xi, pp. 291 et seg. Supra, pp. 152 
et seq. 
©-155 Scherz und Ernst in der Jurisprudenz, p. 187. 


Four German Jurists 187 


The self-imposed task which had drawn Jhering away 
from his promised history of Roman law, the examination of 
the beginnings of Indo-European and Semitic civilization, 
had been brought, at the moment of his death, much nearer 
to completion; and the Prehistoric Development of the Indo- 
Europeans,*** which his executor published before the frag- 
ment of the History of the Evolution of the Roman Law was 
given to the world, makes a good-sized volume. The first 
book treats of the Aryans in their original home and of the 
grade of civilization which they had attained; the third, 
fourth and fifth books deal respectively with their exodus, 
their wanderings and their “‘ second home.” These books are 
either completed or so far completed as clearly to indicate 
the author’s conclusions. The second book, which describes 
the civilization developed at Babylon and its transmission 
to the Mediterranean peoples, is also practically completed, 
and is nearly as long as all the others. Only the last section 
of this book, which was to set forth and compare the racial 
characteristics of the Aryans and the Semites, is unfinished. 
The sixth and seventh books, which were to explain the 
origin of and the differences between the European nations, 
are entirely wanting. | 

What are Jhering’s conclusions — or hypotheses — on all 
these matters, and how were they reached? To me, at least, 
the first question is the less interesting of the two. Jhering 
regards the Aryans as a purely pastoral people, without 
knowledge of agriculture, of architecture or of the working 
of metals. As they were an inland people — Jhering holds 
to the theory that they lived on the northern slope of the 
Himalayas in the modern Hindoo-Koosh — and as they were 
secluded by high mountain ranges from intercourse with 
other peoples, they were also ignorant of navigation and had 
developed no commerce. The Babylonians, on the other 
hand, had developed agriculture, architecture and manu- 
factures some 3500 years before the Christian era. They 


156 Vorgeschichte der Indoeuropder, Leipzig, 1894. 


188 Four German Jurists 


had ships not only upon their great rivers, but on the Indian 
Ocean. 

The Aryans had the patriarchal type of household: if at 

any very early period they had lived under the system of 
mother-right, they had outgrown it before the beginning of 
the migrations. They had reached no political organization 
higher than that of the tribe. The Babylonians, however, 
owing to their invention of bricks and to the consequent 
development of architecture and of city life, had reached 
a high stage of political organization. 
The Aryan law was extremely rudimentary. From the 
juristic point of view the Aryans had no law, for with them 
law, morals and religion were wholly undifferentiated. The 
Babylonians, on the other hand, had a highly developed 
law, particularly as regarded commercial transactions. Of 
their law merchant, Jhering says: 


The Babylonian legal documents enable us to construct a 
clear picture of their commercial and monetary transactions. 
It yields in no respect to that displayed to us by the Roman 
law at its highest point of development in the first centuries 
of the Empire. I know no legal concept, no legal act of that 
system that does not find. its. counterpart among the Baby- 
lonians. In addition to those that are a matter of course, — 
sale, in which we find the Roman rule that the risk passes to 
the vendee with the conclusion of the contract, and hiring, 
in which subhiring also appears, and loan at interest,— 
there are found in the Babylonian law interest for default, 
conventional penalty, assignment of claims and assumption 
of liability, the order to pay, set-off, releases, commission on 
purchase, the contract of partnership, the contract recogniz- 
ing debt and the abstract *°* promise to pay, suretyship and 
pledge, antichresis even and the pledging of pledges; and 

157 “ Abstract,” because the reason (causa) for the promise is disregarded 
and the defenses admissible in the case of ordinary contracts are excluded. 
The abstract contract of the Roman law was the stipulatio. The abstract 
contract of the English common law was the promise under seal. The 


chief abstract promises of modern law occur in the case of negotiable in- 
struments. 


Four German Jurists 189 


there occur transactions of a subtlety that would do credit 
to the trickiest modern usurer.*® 


Through its commerce the influence of Babylon extended 
eastward to India and westward to the Mediterranean. It 
was from Babylon that the Egyptians and the Phoenicians 
derived their civilization. 

Increase of population drove repeated swarms of Aryans 
from their Asiatic home. In their wanderings they developed 
the type of military organization with which all the Euro- 
pean nations started, and the military leadership which grew 
into the later European kingship. On the march was also 
developed that peculiar type of priesthood which we find in 
ancient Rome — priests who are experts in certain matters 
of especial moment to the migrating hordes. A further re- 
sult of the migration was the development of monogamy. 
The chief result, however, was a gradual metamorphosis of 
racial character. Each exodus implied the selection of the 
most enterprising and courageous: centuries of migration 
secured the survival of the fittest, and transformed the in- 
dolent and unpractical Aryan into the energetic and matter- 
of-fact European. , 

The repeated migrations left no Aryans between the orig- 
inal home and the plains of modern Russia. If any tarried, 
they were unable to maintain themselves. The first rest- 
ing-place, the “‘second home” of the wanderers, was in 
southern Russia and Bessarabia. Here they lived for cen- 
turies, and here they learned from the earlier inhabitants the 
art of tilling the soil. The conquered aborigines were not 
reduced to slavery; serfdom was invented. The use of ma- 
nure was not yet known, and therefore in the course of cen- 
turies new exoduses became necessary. Then the work of 
natural selection began afresh, with the result of differentiat- 

158 YVorgeschichte der Indoeuropder, pp. 257, 258. Jhering also describes 
to the Babylonians the invention of foenus nauticum, the maritime loan 
(“ bottomry bond ’’) in which the claim of the lender perishes with the ship, 


and in which the rate of interest is correspondingly high (pretium periculi) .— 
Ibid., pp. 242 et seq. 


190 Four German Jurists 


ing Greeks, Latins, Celts, Germans, efc., from the Slavs, who 
remained in the “second home,” and of whom, as compared - 
with the other European nations, Jhering had a very poor 
opinion. What were the influences that differentiated these 
other European nations, was to have been set forth in the 
unwritten sixth book. We have hints that the explanation 
was to have been found partly in the position, soil and climate 
of their final abodes, partly in their earlier or later contact 
with the Semitic civilization of the Mediterranean. It was 
Jhering’s theory that all differences in national type are 
due, in the last analysis, to external conditions and in- 
fluences. This he termed the theory of “‘ historical causality.” 

What are the data on which Jhering based this daring 
reconstruction of the forgotten beginnings of civilization? 
As regards Babylon, we have the bricks with their in- 
scriptions." In that city the brick took the place of wood, 
metal, parchment or papyrus as writing material. Myths, 
legends and history were made eternal by fire; contracts 
were made binding by burning them. The permanence and 
the comparative worthlessness of the material have pre- 
served the inscriptions. These Jhering used with a certain 
independence. He could not control the translations given 
by the Assyriologists, but he could interpret them. A histori- 
cal document is open to the interpretation of every historian. 
A legal document is more easily interpreted by a jurist than 
by a philologist; and if the jurist be also a legal historian, 
familiar with the various stages of legal evolution, his in- 
terpretation carries greater weight than that of the philol- 
ogist. But Jhering went behind the Babylonian civilization 
at the period of the inscriptions, and endeavored to explain 
its genesis. His starting-point was the character of the 
country. Its great alluvial plains were destitute of stone 
and scantly furnished with wood. The Aryans, who had 
plenty of wood, never got beyond it. With the Babylonians, 
necessity was the mother of an all-important invention, that 


159 The collection of which Jhering makes most use is that of Oppert et 
Ménant, Documents juridiques de l’Assyrie et de Chaldée (Paris, 1877). 


Four German Jurists IQI 


of the brick. The great navigable rivers led to another 
invention, that of the ship. From the brick and the ship 
Jhering deduced the entire Babylonian civilization. His 
construction is, of course, wholly hypothetical. His hy- 
potheses are sometimes fanciful, usually plausible, often 
almost convincing. In every case he ended by convincing 
himself at least. It may have been so; it must have been 
so; it was so—dis a sequence that fairly represents his 
mental process. That it all was as he had pictured it, he was 
at the last so thoroughly assured as to declare that Baby- 
lonian history—by which terms he designated his own 
hypothetical reconstruction of that history — was of especial 
interest and value because it so perfectly exemplified the 
theory of “ historical causality,” *°° — this theory being the 
initial hypothesis upon which the whole reconstruction was 
based. 

In the rest of his journey into Vorgeschichte — in visit- 
ing the first and second homes of the ancestors of the Euro- 
pean and in following their migrations — Jhering has nothing 
beneath his feet that is nearly so solid as the bricks of 
Babylon. The data are words, symbols, rites, customs, in- 
stitutions; the evidence, as lawyers say, is circumstantial, 
that is, the proof is inferential. As in the Spirit of the Roman 
Law, he utilizes the results attained by the philologists; 
and Professor Max Miller tells us that the authorities upon 
which Jhering has chiefly relied are good authorities. *** As 
in the Spirit, he has utilized institutional material to cor- 
roborate, interpret, qualify and supplement the material 
furnished by the philologists. He has made far more use 
than in the earlier work of religious institutions, rites and 
symbols. A large part of the book is devoted to a study of 
Roman religious antiquities, in which he finds reminiscences 
of the exodus from the Asiatic home and reproductions of the 
customs of the migratory period. In none of his writings 
has he made more fascinating use of the historical imagina- 


161 Article cited above (Cosmopolis, September, 1896). 
160 Vorgeschichte der Indoeuropder, pp. 270, 271. 


192 Four German Jurists 


tion than in his explanation of the ver sacrum,**? of the 
priestly colleges and of the auspices.*** He explains what 
seems inexplicable; he accounts for things that all other stu- 
dents of Roman antiquities have dismissed as irrational 
superstitions; and as he accounts for them, they become in 
their origin completely rational. 

Far more clearly than in his earlier books is here re- 
vealed his theory of the relation of religion to custom. Reli- 
gious faith does not create customs: these are originally 
expressions of social utilities. But old customs become 
hallowed by time, and they are preserved as religious observ- 
ances long after their reason for existence has disappeared. 
They are ‘superstitions ” in what is perhaps the strict 
etymological meaning of the word, that is, things left over. 
For the historian of civilization religious forms have thus the 
same worth that fossils possess for the biologist. 

Whatever opinion be held of the value of Jhering’s Indo- 
Europeans, no one will deny that it is an extraordinary 
work for a septuagenarian to conceive and so nearly to 
execute. That a man of so advanced an age should have 
attacked such problems, that he should have brought to 
their solution such quickness and fecundity of imagination, 
that, at the very last, he should have thrown himself with 
such energy into a field of investigation so remote from all 
his previous studies as Assyriology —all this bears witness 
to an exceptional intellectual vitality. Jhering was of those 
whom the gods love, for, though full of years, he yet died 
young. | 

In our review of Jhering’s life work we have seen him 
dropping one task after another, and leaving each unfinished; 
hurrying from legal history into legal philosophy, and from 
legal philosophy into sociology; taking up legal history again 
at the close of his life, only again to abandon it and to de- 
vote his last energies to the history of civilization. And yet 
there was a single impulse behind all his efforts and a con- 


162 Vorgeschichte der Indoeuropder, pp. 3009 et seq. 
163 J[bid., pp. 425 et seq. 


Four German Jurists 193 


tinuity in all his work. What interested him above all things, 
what occupied him always, from whatever side the prob- 
lem was approached, was the evolution of law as an integral 
part of civilization. And his work is in no proper sense un- 
finished; he has found a solution for his problem; law is 
explained from its crudest beginnings to its latest and most 
refined development as the expression of social utilities. The 
thought is, for our time, one of fundamental importance. 
Developed as Jhering developed it, particularly in his 
Teleology, it contains the corrective for the aberrations of 
socialistic theory; for it derives from socialistic premises 
the justification of individualism. 


VII 


The legal reader (if any legal reader has had the patience 
to follow me thus far) may begin to wonder whether, in 
Germany, jurisprudence means simply legal history and 
legal philosophy; and whether, because of the national 
yearning to get to the bottom of every subject, however 
abysmal its depths may be, the tendency of German legal 
history and philosophy is to eliminate the legal element and 
to become mere subdivisions of universal history and of — 
pure philosophy. If any such impression has been created, it 
is doubtless because, in these essays, I have thus far empha- 
sized the more general tendencies of German legal science, 
and have dwelt especially upon that side of the work of our 
four jurists which seems to me of most general interest. It is 
of Jhering, too, that I have thus far had most to say; and 
Jhering made more frequent and more extended excursions 
into neighboring fields than any of his fellow jurists. Jhering 
himself, however, was primarily a jurist, and devoted the 
greater part of his restless energy to labors which even an 
American lawyer would recognize as legal. The work of 
Windscheid and of Bruns was wholly legal. That of Gneist, 
as we shall see, was partly political, but in the main legal. 
All these men — apart from their work as instructors, of 


194 Four German Jurists 


which I shall speak later — made important contributions — 
to the better comprehension of existing law, and each of them 
influenced, in greater or less measure, the development of 
the new law which German imperial legislation has produced 
during the past thirty years. 

To vindicate Jhering’s character as a practical lawyer, 
it should first be noted that he was consulted in sundry 
cases of great importance, and wrote admirable opinions.** 
His Year Books were established for the scientific discussion 
of modern legal problems; and to this journal, during the 
thirty-five years of his editorship, he made constant and 
important contributions. In its pages first appeared, as we 
have already noted, his treatise on the protection of posses- 
sion. Among the topics that he discussed were periculum 
rei in sale, joint obligations, limitations on property rights 
in the interest of neighbors, and protection against the 
malicious invasion of rights — all of them sufficiently practi- 
calthemes. These and other contributions to the Year Books 
are reprinted in his three volumes of Collected Essays. 

In these essays it was his constant effort to find the 
principles that underlie the positive rules of the law. In the - 
heat of the battle against abstract jurisprudence he often 
spoke as if principles were the bane of the law; and at 
the close of his life, in the introduction to his unfinished 
History of the Evolution of the Roman Law, he wrote: 


A rude age has one priceless advantage over an age of 
higher development: it is not yet acquainted with any princi- 
ples; 


But in this instance, as in so many others, Jhering’s utter- 
ances must be read in the light of his immediate purpose. 
Like all good preachers, he had most to say about the sins 
to which his hearers were prone, and to enhance their 
blackness he was capable of blanching those opposite sins to 

164 Some of the more important will be found in his Vermischte Schriften 
(1879) and Gesammelte Aufsdtze (1881-1886). 


165 Entwicklungsgeschichte des romischen Rechts, p. 17. The italics are 
Jhering’s. | 


Four German Jurists 1Q5 


which they had no leaning. Had he lived in a land where 
the average lawyer cared only for the rule, and not for the 
reason; where fictions and presumptions were commonly 
accepted as final legal truths and estoppel stopped all scien- 
tific inquiry, he would have denounced such disregard of 
principles as vehemently as he denounced the ideolatry of the 
Germans. In his Possessory Intention he remarks that 
‘the nature of the case is invoked only by him who does not 
really know how to justify his views” ; *°° and in another 
passage he declares that the establishment of a legal pre- 
sumption, in order to escape the objectionable results of a 
recognized principle, 


is, in my eyes, simply escaping from an impasse into which 
we have strayed by our own fault by climbing over roofs 
or walls. When we find ourselves in an impasse, it proves 
that we have missed the right road, and the moral is that we 
must turn back and try to find it.** 


Jhering’s real quarrel was with that purely deductive juris- 
prudence which treats as absolute and final truths the 
principles heretofore commonly recognized. ‘‘ Principles,” 
he said, “ are not written in the stars, nor have they fallen 
from the skies; man makes them for himself.” *°* If they 
do not correspond to the existing rules of positive law, or 
if rules deduced from them do not subserve the interests of 
society, the principles, he held, must be remade; and Jhering 
was in no wise disposed to shirk this task. Among his contri- 
butions to constructive jurisprudence, that which has ob- 
tained most general recognition is his theory of the “‘ nega- 
tive interest of contract.” *°° 

The problem is this: A person supposes, and under the 
circumstances is entitled to suppose, that he has a contract. 
Under this supposition he incurs expenses, or he neglects or 


166 Besitzwille, p. 206, note. 167 Jbid., pp. 17,18. 198 Ibid., p. 504. 

169 Culpa in contrahendo, oder Schadensersatz bei nichtigen oder nicht 
zur Perfektion gelangten Vertragen. — Jahrbiicher fiir die Dogmatik, vol. iv, 
pp. 1-112. The essay is reprinted in Gesammelte Aufsdtze. 


196 Four German Jurtsts 


refuses to make another contract, and in consequence of this 
neglect or refusal he suffers loss or lets an assured profit 
escape him. It turns out that, owing to circumstances for 
which he is in no wise responsible, of which he was not 
aware and could not be expected to be aware, he has no 
contract. What remedy can the law give him? 

The problem arises, as Jhering pointed out, in many 
different classes of cases. The contract may be invalid 
because the other party is by law incapable of binding him- 
self. It may be invalid because the thing which the other 
party has undertaken to do is impossible. Or it may be 
that the other party to the contract has made a mistake such 
as the law permits him to plead—a mistake that is ex- 
cusable and of such importance that but for the mistake he 
would not have made the declaration, whether of offer or 
acceptance, which he has made. Or a mistake has occurred 
in the transmission of the declaration, whether by messenger 
or by telegraph.*”? In some of these cases *” the Roman law 
treats the contract as void, while the English law makes it 
voidable only; but under either view the party who has 
taken at its face value the declaration made or sent to him, 
who was justified in so taking it, and who has suffered dam- 
age by reason of his confidence, seems to ee no remedy 
on the contract. 

Has he any other remedy? In one case he undoubtely has, 
namely, in the case of fraud or misrepresentation on the 
part of his antagonist. If, however, no fraud or misrepre- 
sentation can be shown, — and in some of the cases above set 
forth this is excluded by hypothesis, — the dominant Ger- 
man theory, before Jhering’s essay was published, gave him 
no claim for damages.’ In some modern decisions, how- 

170 In the case of telegraphic mistakes the German jurists are forced to 
decide whether the resultant damage shall fall upon the sender or the 
addressee, because the telegraphs are governmental, and the government will 
an 171 Other cases discussed by Jhering are here omitted, either because 


they are peculiar to the Roman law, or because they are of minor im- 
portance. 


172 After Jhering had elaborated his theory, he discovered that it had 
been substantially anticipated by Richelmann, Der Einfluss des Irrthums auf | 


Four German Jurists 1Q7 


ever, and in some of the modern codes, Jhering found a 
claim for damages sporadically recognized — recognized, 
that is, in some of the cases in which he believed it should 
be recognized. Damages, when allowed, were sometimes 
measured by the interest which the party had in securing 
the performance of the contract. This, Jhering maintained, 
was going too far. In other cases only such damages were 
allowed as the party suffered by reason of his justifiable 
belief that he had a contract. This Jhering declared to be 
the correct solution. The party in question should have no 
claim either for the performance of the contract or for dam- 
ages for non-performance; for to allow either claim would 
be to recognize the invalid contract as valid. What should be 
accorded him is a claim to be put in as good a position as 
if he had never been led to suppose that he had a contract. 
This, as contrasted with the “ positive interest ” in perform- 
ance, Jhering termed “‘ negative interest.” *“° 

In one class of cases Jhering was able to show that this 
claim for negative interest was recognized by the Roman 
jurists, namely, in cases where a contract of sale was void 
because its performance was objectively impossible. Where, 
for example, a person unwittingly bought land that was 
sacred, or religious, or the property of the people, Modestinus 
declared that “although the purchase does not hold, yet 
the purchaser will have an action on the purchase against 
the vendor to recover damages for being misled ”’ — “ quod 
interfuit eius ne deciperetur.” *"* 

Neither in the Digest, nor in the modern codes in which 
Jhering found the rule for which he is pleading practically 
Vertradge (Hanover, 1837). Richelmann, however, had not so presented it 
as to make any impression on his contemporaries. 

173 “Interest "— quod actoris interest, the difference it makes to the 
plaintiff —is the older European term for damages, including both damnum 
emergens, positive loss, and lucrum cessans, failure to gain. In the French 
law we have the phrase dommages-intéréts. In the new German code, 
Interesse designates the measure of damages; damages recovered are Schadens- 
ier Digest, 18, 1, ir. 62, § 1. Cf. Inst. 3, 23, § 5. See also Digest, 11, 7, 
fr. 8, § 1, and 18, 4, frs. 8, 9. The passages cited, as Jhering shows, cannot 


be explained on the supposition that the vendor knew and concealed the 
impossibility. 


198 Four German Jurists 


recognized, was the reason for the rule set forth; nor did 
he find it satisfactorily enunciated in any of the modern 
decisions. According to his theory, the claim for negative 
interest is based upon the negligence (culpa) of the antago- 
nist. In the case mentioned in the Digest, as he urges, 


the vendor contracts without being personally able to fur- 
nish the requisites of the validity of the contract, and through 
the false semblance of contract he misleads the other party.*”” 


It is true that there is usually, at Roman as at English law, 
‘ no liability for negligence except in contractual relations. 
The contractual duty to exercise proper care does not, how- 
ever, begin with the conclusion, but with the concluding 
of the contract. In contracting, 


the first and most general obligation assumed is this: to 
exercise in the act of contracting itself the requisite diligentia. 
Not merely existing contractual relations, but such also as 
are coming into existence, must be brought under the pro- 
tection of the rules regarding negligence.*”® 


This point of view gave the essay its title, “Culpa in 
contrahendo.” In the essay itself, however, there are in- 
dications that this construction was not wholly satisfactory 
to its author. In some of the cases in which he desired to 
hold a party liable for negative interest, it is impossible to 
show any real negligence; and Jhering, admitting this, fell 
back upon a presumption of negligence.’ ‘This, according 
to his own declaration,*”* is tantamount to abandoning the 
search for “the right road.” 

That he should have clung to this theory is the more singu- 
lar because in other passages of the original essay he clearly 
develops a different and more tenable construction. He 
tells us that the party to whom an apparently good declara- 
tion comes should not be required, in order to protect him- 
self, 


175 Jahrbicher fiir Dogmatik, vol. iv, p. 41. 177 Ibid, p. 36; 
176 Jbid., p. 42. 118° Supra; Di Aas 


Four German Jurists mere) 


to exact an express warranty of the absence of negligence 
or, more particularly, of the existence of the legal requisites 
of contract. The law can and should spare him this trouble 
by reading into the act of contracting itself the tacit assump- 
tion of such a warranty [die stillschweigende Uebernahme 
dieser Garantie]. In extra-contractual relations no one can 
demand from another the warranty of the trustworthiness 
and truth of his utterances and communications. ... In 
contractual intercourse, on the contrary, in which just these 
utterances are intended to acquire binding force, he can 
look to the other party to determine whether they are 
well founded; he himself, as a rule, is not in a position to 
make any such investigation. In concluding the contract 
with him, the other party warrants [garantirt| to him the 
satisfactory result of such an investigation. . . . Whether 
he assures him in words or by his act that he is in a position 
to conclude this particular contract, can make no differ- 
ence: this assurance |Versicherung| lies in the act of con- 
tracting itself.*”° 


Jhering’s rule of negative interest has found very general 
acceptance,’*° both among German writers and in German 
legislation. It has found a place in almost every compen- 
dium of modern Roman law. The new German civil code 
recognizes it in the cases where contracts are voidable be- 
cause of the mistake of the other party or because of mistake 
in the transmission of a declaration, and in the cases where 
contracts are void because their object is impossible or 
illegal.*** Many of his colleagues, however, have chosen to 


179 Jahrbiicher, loc. cit., pp. 42, 43. The italics are mine. 

180 Except in the case where the invalidity of the contract is due to the 
lack of capacity of the other party. Jhering himself was not quite sure of 
this case. — Ibid., pp. 57 et seq. 

181 The German code also recognizes the negative interest of contract in 
one case in which Jhering declared that it should not be recognized. § 93 
reads: “A declaration not seriously intended, which is made in the expecta- 
tion that the lack of serious intention will not fail to be perceived, is void; ” 
and §97 gives to the other party, if he failed to perceive, and under the 
circumstances could not be expected to perceive, the lack of serious intention, 
a claim for negative interest. Jhering, in his essay (p. 74), took the very 
sensible ground that when a declaration is made jocosely, the joke, under 
the circumstances, must either be one that other persons are bound to see, 
or one that they are not bound to see. In the former case, no one ought to 


200 Four German Jurists 


base the rule on the theory of implied warranty, and not on 
the theory of culpa in contrahendo.*** In Jhering’s view 
the action for negative interest is contractual; the contract, 
though invalid for every other purpose, is upheld for this.** 
On the theory of implied warranty, the action is not on 
the contract, but on the separate warranty involved in the 
act of contracting. 


have any claim, even for negative interest; in the latter case, the joker should 
not be allowed to plead his humorous intention. 

The sections of the code which refer to negative interest are the following: 

“8o7. If a declaration of will is null according to § 93 [lack of serious 
intention], or is avoided on the basis of §§ 94, 95 [mistake as to the content 
of the declaration, absence of intention to make a declaration of such content, 
mistake as to essential qualities of the person or the thing, mistake in the 
transmission of a declaration], he who made the declaration is liable, in case 
it was addressed to a particular person, to this person, in other cases to every 
third person, for the damages which such person suffers by reason of his 
reliance on the validity of the declaration; but not beyond the amount of 
the interest which such person has in the validity of the declaration. 

“The liability for damages does not arise if the person who suffers 
damage knew the cause of the nullity or voidability, or failed to know it in 
consequence of negligence (was bound to know it). In the case of § 95, the 
liability for damages is also excluded if the incorrectness of the transmission 
is owing to an unavoidable cause [hohere Gewalt].” 

““§ 259. A contract looking to an impossible performance is null. 

“Tf in concluding the contract the one party knew or was bound to 
know the impossibility of performance, he is liable for the damages which the 
other party suffers by reason of his reliance on the validity of the contract, 
but not beyond the amount of the interest which such party has in the 
validity of the contract. The liability for damages does not arise if the other 
party knew or was bound to know the impossibility. 

“The provisions of clause 2 will have suitable application in case the 
promised performance is only partially impossible, and the contract is valid 
as regards its possible part, or in case one of several performances alter- 
natively [waklweise] promised is impossible.” 

“§ 261. Ifa contract is in conflict with a legal prohibition, the provisions 
of § 259, clauses 2, 3, . . . will have suitable application.” 

The limitation, in the above paragraphs, of the negative interest to the 
amount that might be claimed, were the contract valid, for its non-perform- 
ance, is reasonable and necessary. Suppose, for example, that a vendor, 
thinking himself bound, refuses a better offer; is he to claim the profit which 
the acceptance of such offer would have given him? Without the limitation 
in the above paragraphs he would be entitled to do so. 

The above citations are from the revised draft — Entwurf, Zweite Lesung. 
The text of the code as adopted is not before me, but it is understood that 
few changes were made. 

182 Cf, Windscheid, Pandekten, vol. ii, § 307, n. 5. Contra Vangerow, 
Pandekten, vol. i, § 109, and Dernburg, Pandekten, vol. ii, § 10, n. 10, who 
are satisfied with the theory of negligence. In the first draft of the German 
civil code, §§ 97, 345, liability was expressly based on negligence (Fahrlas- 
sigkeit), but this is not the case in § 97 of the revised draft, cited above. 

183 This appears to have been the view taken by Modestinus, in Digest 18, 
1, fr. 62, §1, ex empto experietur; but compare Ulpian’s quasi ex empto, 
Digest 11,'9, i878, $2 


Four German Jurists 201 


Another portion of the new civil code reveals the in- 
fluence of Jhering’s theories. The first draft of that code 
appeared in 1888, while he was writing his Possessory Inten- 
tion, and he subjected the section on possession (§§ 797- 
825) to a searching criticism.** The codifiers had main- 
tained, formally at least, the Roman distinction between 
purely physical control or detention (Jnhabung) and pos- 
session (Besitz) ; and in accordance with the dominant 
theory,’ the distinctive element in possession was declared 
to be “‘ the intention of the holder to hold the thing as his 
own.” Possession was therefore excluded, and only de- 
tention recognized, in three cases: (1) Where one cannot 
hold the thing as his own, because it is incapable of being 
owned; (2) Where one cannot hold the thing as his own, 
because it is a part of another thing and incapable of separate 
ownership; and (3) Where the thing is held for another. 
With the first of these cases Jhering made merry: 


Things in which no ownership is possible — of what things 
are we here to think? I know of none, and I have sought 
in vain for any in the motives accompanying the draft. For 
the Roman law, the rule, . . . where there is no ownership, 
there there is no possession, had practical reality, for the 
Romans recognized things in which ownership was not pos- 
sible (res extra commercium) ; but what has the rule to do 
with us? It might be reversed without making the least 
difference. The Roman category is retained, but there is 
nothing to put in it. It is an empty druggist’s jar, left 
standing after a change in the official pharmacopeeia, al- 
though the article for which the label calls is no longer kept 
in stock.**® 


As regards the second and third cases Jhering pointed out 
that, according to §§ 814 et seq. of the draft, the detentor 
was to have all the rights of a possessor except as against the 
possessor of the entire thing (c.g., a building) of which he 


184 Besitzwille, ch. xix, pp. 470-534. 
185 Political Science Quarterly, vol. xi, pp. 282, 283, 285. Supra, pp. 


143, 144, 146. 
186 Besitzwille, pp. 472, 473. 


202 Four German Jurists 


holds a part (e.g., a suite of rooms), or the possessor for 
whom and in whose name he holds. Why then, Jhering 
urged, is he not called possessor? Why keep up the dis- 
tinction of names when the possessor and the detentor have 
been substantially assimilated? 

In the second draft this suggestion was followed. The 
detentor (Inhaber) has disappeared, and with him has dis- 
appeared the requirement of the animus rem sibi habendi 
for the possessor(Besitzer). Of the Roman possessor but 
one trace is left. The last paragraph of the section (§ 793) 
declares that “‘ he who possesses a thing as belonging to him, 
is Eigenbesitzer.” This old friend with a new face, who thus 
makes his entrance just as the curtain drops upon possession, 
reappears later when the stage is set for prescription; and in 
this scene he plays the leading part. 

Another and more practical criticism upon this section 
of the code turned upon the protection which it gave to 
the detentor who holds for another against the person for 
whom he holds. He was authorized to meet arbitrary dis- 
turbance or an attempted ouster with force. He was au- 
thorized, if forcibly deprived of a movable, to employ force 
for its immediate recovery; if forcibly ejected from real 
property or ousted in his absence, to resume control by 
force (§ 815). This protection, said Jhering, is all very 
well in the case of the person who has borrowed or hired 
from me a horse, or has leased from me a house or an 
apartment; but how about household servants and other 
employees? How about agents? If I wish to turn my 
butler out of the room he occupies in my house, or if I 
wish to prevent a messenger whom I have hired from 
making off with a parcel instead of delivering it, must I 
appeal to the courts? If I lend an opera glass to a person 
sitting by mein the theatre, and he refuses to give it back, 
may I not take it? And if I take it from him by force, is 
he to be permitted to use force for its immediate recovery? *** 

Here again the second draft puts things straight. After 


187 Besitzwille, pp. 503 et seq. 


Four German Jurists 203 


defining possession as “actual power” (thatsdchliche Ge- 
walt) over the thing, without any allusion to the intention 
with which this power is exercised, the code continues: 


$778. If any one exercises the actual power over a thing 
for another person in that person’s household or business 
affairs, or in any other relation by virtue of which he has 
to follow that person’s instructions in reference to the thing, 
that person only is possessor. 


Here then the Roman “natural possession” reappears, 


and in very much the same relations in which Jhering 
asserted, by virtue of his reconstructive imagination, that 
it originated.*** This natural possessor of § 778 has only 
those natural rights of self-defense and self-help which are 
requisite to protect the property entrusted to him against 
third persons (§ 782). On the other hand, all those who 
hold for or in the name of another, but in relations other 
than those indicated in § 778, are possessors, with full posses- 
sory rights even against those for whom or in whose names 
they hold. If they are to be derived of possession, it must be 
by process of law. In this class we find, as at Roman law, 
the usufructuary and the pledgee, and also the lessee, to 
whom the Roman law was so unfair (§ 790).**° 

Considering the attention which German writers have 
devoted to this subject,’°° and the care with which the first 
draft of the code was worked out, the section on possession 
was surprisingly bad. In the second draft, the same sec- 
tion is admirable, both in substance and in expression. The 
credit for the improvement is largely due to Jhering.**”* 

188 Jbid., ch. viii. Cf. Political Science Quarterly, vol. xi, pp. 285, 286. 

189 Those also for whom possession is held have possessory rights against 
third persons: they have “ mediate ” or constructive possession. 

190 Cf. Political Science Quarterly, vol. xi, p. 278. 

191 Credit for inducing a more practical consideration of the whole sub- 
ject is also due to Count Piniriski, Der Thatbestand des Sachbesitzerwerbs 
(Leipzig, 1885). Great credit— as much, perhaps, as can be claimed for 
Jhering — is due, as regards the improvement of the section in the code, to 
Gierke, who had anticipated in Schmoller’s Jahrbuch fiir Gesetzgebung, etc., 
vol. xii, 3, pp. 74 et seg., many of Jhering’s criticisms. Credit is doubtless due 


to others; but when there was such a deluge of criticism as was poured upon 
every part of the first draft, it is not possible to do justice to all the critics. 


204 Four German Jurists 


Windscheid’s chief contributions to constructive jurispru- 
dence were his theories of the “claim” and of the “ pre-+ 
supposition.” Claim (Amspruch) he defined as the per- 
sonal incidence of the right.**? Real rights, that is, rights in 
things, are, he explained, primarily powers over the things 
themselves; but they have personal incidence also. They 
run against every one, carrying with them a claim for non- 
interference. When a claim of this character is infringed, 
when some one interferes with the dominion of him to whom 
the right pertains, the claim assumes the form of a right 
of action. Personal rights, on the other hand, have for 
their primary object the acts or forbearances of particular 
persons. They exist only in their personal incidence: they 
are simply claims. If what is claimed be an act, the claim 
is, from the start, a right of action. If what is claimed 
be a forbearance, there is no right of action until he whose 
duty it is to forbear violates this duty. 

The Romans used the word actio to describe, not merely 
the appeal to the courts, nor merely the power of appealing 
to the courts, but the right itself in its personal incidence. 
They often used actio and ius as equivalent terms. The 
distinction between actions im personam and actions im rem 
is really a distinction between personal and real rights ac- 
cording to their primary or immediate incidence. In the con- 
crete sense all actions are against persons. Windscheid 
found in German law no term to express the personal in- 
cidence of the right, whether immediate or mediate, and 
he proposed to use Auspruch in this sense. 

So far the matter is one of terminology merely, but 
Windscheid went further. Because of failure to discrimin- 
ate between the different meanings of actio, courts and 
legislatures, he maintained, have come to treat as merely 
procedural, as connected with remedial law only, rules and 
institutions that in reality belong to substantive law. ‘The 


most important case of this sort is the praescriptio temporis 
192 “ Die persdnliche Richtung des Rechts.” — Die Actio des romischen 


Civilrechts vom Standpunkte des heutigen Rechts (Diisseldorf, 1856). See 
also Pandekten, vol. i, § 43. 


Four German Jurists 205 


in its application to actions. According to Windscheid, it is 
not the suit merely, but the claim, that is prescribed; and 
the whole subject should be treated under the caption “ pre- 
scription of claims,” not under that of ‘“ prescription of suits.” 
According to his construction, prescription begins to run 
as soon as the claim exists and is “ unsatisfied.” Prescrip- 
tion is interrupted, not only by bringing suit, but by any 
distinct exercise of the right against the person of inci- 
dence. The prescription of the “ real claim” (actio in rem) 
leaves the right intact, because the prescribed claim is 
but an expression or manifestation of the right; but the 
prescription of a personal claim (actio in personam) de- 
stroys the right, because the right is nothing but claim. 
To translate this latter conclusion into the terms of Eng- 
lish law: the limitation of an action for the recovery of 
debt, or of an action for damages for breach of contract, 
does not merely bar the remedy, but destroys the right. 
Windscheid’s theory has not obtained general or un- 
qualified acceptance among his colleagues. _Brinz*® de- 
clared that he could not think of a claim without a particular 
person against whom the claim was directed. Thon ** pro- 
nounced the theory of a claim against the world to be as 
idle as itis misleading. Their criticism touches Windscheid’s 
‘“‘ real claim ” which runs against everybody, and is, I think, 
sound. According to Windscheid’s own definition no “ real 
claim” should be recognized until the right has found a 
really personal incidence. It is, however, mere juggling 
with words to say in the same breath that my right to be 
paid one hundred dollars on B’s note has “ personal in- 
cidence”’ against B, and that my right to the control and 
enjoyment of my back yard in New York has “ personal 
incidence” against every citizen of the United States. Ac- 
cordingly, the majority of the German jurists who have 
accepted Windscheid’s word, give to the Anspruch a narrower 
and more definite meaning, and recognize no “ real claim ” 


193 Pandekten, vol. i, p. 252; cited by Dernburg, Pandekten, vol. i, § 30, 
nes. 194 Rechtsnorm, p. 159; cited by Dernburg, Jbid. 


206 Four German Jurists 


. except against the person who has interfered with the con- 
trol and enjoyment of the thing.*°’ Thus construed, the 
“claim” becomes practically equivalent to the English 
‘right of action ” in its broader sense.**° 

Windscheid’s conclusions touching prescription of actions 
are unaffected by this question of the construction of his 
own definition. In fact, they harmonize better with the 
construction which makes his claim equivalent to the Eng- 
lish right of action than with his own construction; for his 
“real claim” is not subject to prescription until it is “ un- 
satisfied,” and it is perfectly satisfied so long as there is no 
interference with the substantive right. As soon as this 
interference comes, however, there is a right of action. 
His theory of limitation may accordingly be stated as fol- 
lows: It is not actions that are limited, but rights of action. 
If the English courts accepted this theory, they would be 
obliged to hold, as he does, that when an action for the 
recovery of debt is barred, the debt is extinguished. ‘Their 
contrary decisions are based upon the theory that statutes 
of limitation operate only as a bar to suits. In this matter, 
again, there is, among German jurists, no general and com- 
- plete acceptance of Windscheid’s views.’ 

In the new German code the term Anspruch is very freely 
used. It is defined in § 161 as “ the right to require from 
another an act or forbearance ” — “ ein Thun oder Unter- 
lassen.” It is everywhere employed in this broad sense: it 
is practically the substantive form of the verb “ require ” 
(verlangen). In the law of things it is not always a claim 
against a particular person.*®* In the law of obligations it 
plays a subsidiary part: the primary claim is termed Ford- 
erung, while other claims are commonly described as Anspri- 


195 Windscheid himself is inconsistent in his own construction. If the 
“claim” of an-owner for forbearance runs against all the world, and if 
limitation of the action is destruction of the “ claim,” then the limitation of 
an action on trespass extinguishes the owner’s claim against all the world, 
and he can bring no action on anybody’s trespass. 

196 For a criticism of Windscheid’s theory on other grounds, see Jhering, 
Besitzwille, p. 520, and Dernburg, Pandekten, vol. i, § 39 im fine (pp. 87, 88). 
197 See Dernburg, Pandekten, vol. i, § 145, pp. 335, 336; § 150, p. 346. 

198 See §§ 803 et seq. 


Four German Jurists 207 


che. Forderung is clearly a species of the genus Anspruch.'*® 
The section on prescription °°? speaks throughout of the 
prescription of Anspriiche; the German word for action, 
Klage, occurs only in the paragraphs relating to the in- 
terruption of prescription by bringing suit. The whole 
section is drafted in substantial harmony with Winscheid’s 
theory. 

In his doctrine of ‘ presupposition ” *°* Windscheid en- 
deavored to show that several distinct institutions of the 
Roman law were merely different expressions of one idea, 
and that numerous rules, not previously brought into re- 
lation with each other, were all corollaries of one general 
principle. The character and range of these rules may be 
indicated by a few examples. A man buys a brass vase sup- 
posing it to be of gold, or clothes that have been renovated, 
supposing them to be new; the vendor labors under the same 
mistake; the sale may be rescinded, or the difference in value 
recovered.*** A testator has named as his heir a person 
whom he supposed to be his son; it is shown that this person 
is not his son; the testament may be overturned.*’* <A 
person has paid what he supposed to be money owed; it 
turns out that nothing was owed, or not so much; he recovers 
the money paid, or the excess, with the condictio indebiti.”°* 
A person has paid money which he supposes that he will owe; 
and it turns out that he does not owe it — e.g., he has paid 
rent in advance, and the house he has leased burns down; 
he recovers the money.**’ A person pays money that a slave 
may be manumitted; the slave is not freed; he recovers on 
the condictio ob causam dati.*°*° A man gives presents to 
the girl to whom he is betrothed; the engagement is broken 
by her or her parents; he recovers the presents on the condtc- 

199 So Windscheid, Pandekten, vol. ii, § 250. 

200 Verjahrung, §§ 161-190. 

201 Die Lehre des romischen Rechts von der Voraussetzung (Diisseldorf, 
1850), and Pandekten, vol i, §§ 97-100; vol. ii, § 423; vol. iii, §§ 556, 636. 

202 Digest, 18,1, fr. 45. As to the question of a warranty, see Windscheid, 
Jolin cette p. 116. He assumes that there was no warranty. 

apeneocd.,.0).235 °C, $5 Digest, 37, 10, ir. 1, §. 11. 


204 erie ‘12, 6 passim. 
205 Digest, 19, 2, fr. 10, § 6. 206 Digest, 12, 4, fr. 3, § 2. 


208 Four German Jurists 


tio ob causam dati.**" A testator makes a bequest of land to 
a municipality, with the request that the annual income be 
expended upon public games; no games are celebrated for 
four consecutive years; the testator’s heir can recover the 
mesne profits.”°* In cases analogous to this last, the Roman 
jurists also recognized a right to obtain performances. They 
held that a legacy with such a charge annexed could be held 
back until the legatee gave security for performance of the 
charge; and that, where a gift was made inter vivos with such 
a charge annexed, the donor or his heir could sue for its 
fulfillment. 

According to Windscheid, the principle that underlies these 
and other analogous cases is as follows: He who has made a 
declaration of will (done a legal act) *°° in the belief that a 
certain state of things, actual or legal, existed in the past 
or exists in the present, or in the expectation that a certain 
state of things, actual or legal, will exist in the future, and 
who would not have willed (acted) as he did but for such 
belief or expectation, has willed (acted) under a “ pre- 
supposition,” and has imposed upon the operation of his 
will (acted) a limitation that is analogous to a condition.** 
The presupposition is “‘an undeveloped condition.” In 
case of the failure of the presupposition — in case the belief 
was erroneous; in case the assumption, although originally 
correct, becomes incorrect; in case the expectation is not 
realized — the person who has assumed obligation has a 
defense, and the person who has parted with anything has 
an action for recovery; or if the person is dead, the same 
defense and the same action pertain to his representative 
(heir or executor). If the presupposition was that the 
party benefited by the act was to do anything, there is 
also a claim for specific performance. In the case of acts 

201 ACOs 5; 35 Co BS 208 Digest, 33, 2, fr. 17. 

209 This and the following parentheses are inserted to aid the English 
reader in translating Windscheid’s formula from the realm of will to the 
rau of its external manifestation in conduct, with which alone the law has 


210 The presupposition, according to Windscheid, may also be negative — 
that a certain fact or legal relation did not, does not, or will not exist. 


Four German Jurists 209 


mortis causa, the above rules are unqualified. In the case of 
acts inter vivos, they obtain only when the presupposition 
-was indicated, expressly or by implication, to the other 
party — only when, in other words, he perceived or should 
have perceived that the act would not have been done but 
for the belief or expectation in which it was done. 

On its face this construction has merits. The separate 
doctrines of mistake in motive ** and of charge (modus), 
and at least a large part of the doctrine of unjust enrich- 
ment, are brought under one cover. On more careful ex- 
amination, however, the question arises whether anything 
is gained by this achievement. Does Windscheid’s rather 
cumbrous theory make the application of the rules more 
easy? Does it make their application more certain? The 
Roman doctrines are clear cut; there is little difficulty in 
applying them. In contemplating Windscheid’s doctrine, on 
the contrary, we are conscious of a vagueness of outline, 
and we are not sure how it would work out in practice. If 
we concede its merits as a bit of legal science, can we call it 
a good piece of legal art? *’ On all these points there is 
much difference of opinion among German jurists. Not a 
_ few of Windscheid’s colleagues have accepted it,?'* and it 
has obtained some recognition in the courts.*** Other jurists 
have rejected it.”*° In the first draft of the German code it 
found partial recognition.**® In the second draft it has com- 
pletely vanished. 


211 Savigny’s distinction between mistake that excludes consent (“ fun- 
damental mistake,” Pollock terms it) and mistake in the motive is generally 
accepted by German jurists, and Pollock (Principles of Contract, p. 393) 
pronounces it applicable to English law. 

212 To the distinction between the two Jhering has given classic expres- 
sion.— Geist des r6mischen Rechts, 3d ed., part ii, div, ii, pp 323, 324. 

213 Rudorff, Bahr, Unger, Brinz and others; cited by Windscheid, Pan- 
dekten, vol. i. § 97, note 1. 

214 Citations from Seuffert’s Archiv fir Entscheidungen, in Windscheid, 
Ibid. 

215 Voigt, Die Condictiones 0b Causam (1862), pp. 515-523, cited by 
Windscheid, 7bid. Dernburg, Pandekten, vol. i, § 116, finds that really 
heterogeneous matters are brought by Windscheid under one category, and 
that his presupposition cannot take the place of the concrete and definite 
constructions of the Romans. 

216 In the first draft the commissioners put the condictio ob causam 
under the heading Voraussetzung (§§ 742 et seqg.), and stated the rules of 


210 Four German Jurists 


The effect produced by these special doctrines, claim and 
presupposition, was trifling compared with the influence 
which Windscheid exercised upon theory, practice and legis- 
lation at large, through his great work on Pandects." ‘The 
title, it may be well to explain, signifies a detailed presenta- 
tion of the rules of modern Roman law. As the Roman law, 
in the absence of contrary custom or legislation, is the general 
law of Germany, and as the newer codes, for the most part, 
are based upon Roman law, the German who lectures or 
writes upon Pandects lectures or writes upon the private law 
of Germany asa whole. The Germanist, who describes those 
institutions of Teutonic law that survived the reception of the 
Roman law and notes the modifications introduced by mod- 
ern German legislation, simply adds a number of details to 
the picture drawn by the Pandectist. 

In every German university there are regularly two Pan- 
dectists, and many of these publish their Pandects. Of all 
these Pandectists Windscheid was for a generation the most 
popular. In his lectures he counted his hearers by hundreds 
where the majority of his colleagues counted theirs by tens, 
and his book enjoyed a corresponding vogue. It was the 
book which must be studied, whatever other books were read 
or left unread. It was the vade mecum of the referendary 
and of the assessor. It was constantly cited by the advocate 
and consulted by the judge. 
the Roman law in accordance with Windscheid’s theory. They declared also 
that testamentary dispositions and inheritance contracts might be attacked 
because of failure of presupposition ($§ 1781 et seq., 1948 et seq.) ; and they 
based the claim for recovery oi gifts after dissolution of an engagement to 
marry on the presumption of a presupposition (§ 1229). In all these cases, 
however, they limited the term to the expectation of future events or future 
legal results; and in connection with the condictio ob causam they de- 
clined to admit recovery on the ground of an erroneous supposition as to 
past or present circumstances, because this would open the door to numer- 
ous attacks upon contracts because of mistake in motive (Motive zu dem 
Entwurfe, vol. ii, p. 843). In other portions of the draft, however, they used 
the term presupposition for a determinant supposition as to past or present 
circumstances: cf. § 290, cl. 4; § 667, cl. 2; § 684, cl. 2. In treating of 
modus or charge (Auflage) (§§ 448, 1757, 1886 et seq.), they avoided the 
term presupposition entirely; and in Motive, vol. i, p. 249, they explained 
that the doctrine of presupposition as a general category of the self-limitation 
of the operation of legal acts was not sufficiently developed to make its em- 
ployment safe (uwnbedenklich) in legislation. 


217 Lehrbuch des Pandektenrechts. Three vols.. 1862-1870. Seventh ed., 
189Ql. 


Four German Jurists 211 


The book has, of course, striking merits, or it could have 
had no such success. It has proportion: the space allotted to 
the various subjects is determined by a sound sense of their 
relative importance. Each section is carefully thought out, 
and — a rarer excellence — the bearing of each section upon 
the others is thought out with equal care. Each institution is 
regarded in its relation to other institutions. The whole book 
hangs together: it is really systematic. The style is concise 
and clear. The vocabulary is German. Windscheid was a 
purist, and coined many German expressions to take the 
place of the customary Latin terms. 

The most remarkable and most admirable part of the book 
is the footnotes. They constitute by far its greater part: they 
fill, at a rough estimate, two-thirds of the space, and contain 
more than four-fifths of the matter. In them, as I can testify 
from long use, every significant passage of the Corpus Turis 
— every passage, at least, that has any relevancy to modern 
life — is somewhere cited. If there is serious doubt as to its 
interpretation, the doubt is noted and Windscheid’s inter- 
pretation is briefly indicated. Wherever it seems necessary, 
reference is made to books, brochures or articles in which the 
passage is more fully discussed. Modern German decisions 
are not neglected; they are at least more frequently cited 
than in any other German work of the same kind. The notes 
serve also as an index to the German literature, from Savigny 
down, including not a little of the periodical literature. They 
are, however, much more than an index: it is hardly saying 
too much to call them a digest. All important controversies 
are noted; the chief arguments on all sides are stated (it isa 
poor controversy in Germany that has only two sides); and 
the prevalent opinion is fairly indicated, whether it happens 
to be the author’s opinion or not. For the German literature 
of the Roman law in this century — barring the purely his- 
torical writings — Windscheid has done what Accursius did 
for the glossators. It is no wonder that his book became a 
new “‘ standard gloss ” in the German administration of civil 
justice. 

The faults of the book —— the extremely abstract statement 


212 Four German Jurists 


of principles and even of rules, the over-valuation of deduc- 
tive results, the undue stress laid upon the psychical proc- 
esses of the individual and the useless subtlety displayed in 
their analysis — these faults, I think, rather increased than 
diminished the influence of the work; for in his defects as in 
his excellences Windscheid fairly represented the jurispru- 
dence of Germany in the nineteenth century. A few very 
practical young men, most of them Jhering’s converts, ac- 
cused Windscheid of being a “‘ post-glossator,” which meant 
that, in their opinion, he represented the scholastic tendencies 
of European jurisprudence in the fourteenth and fifteenth 
centuries; but the great majority of his contemporaries were 
in full sympathy with his views and methods. 

The first draft of the German civil code gave striking evi- 
dence of the hold which Windscheid’s Pandects had gained in 
German practice. The great majority of the commissioners 
were not theorists, but practitioners; not pupils of Wind- 
scheid, but his contemporaries; and yet, when the code was 
published in 1888, the remark that was most often heard — 
I speak as a witness on the spot — was, “ It is pure Wind- 
scheid.” *** In this remark there was, of course, no little 
exaggeration. Much that was designated as Windscheid was 
simply Roman; much was really Savigny-Puchta-Wind- 
scheid, or modern Romanistic theory. Uttered by a German- 
ist, the remark usually meant that the code contained too 
little German law. As the code was studied, moreover, it 
was found that in employing Windscheid’s terms the codifiers 
had not always followed Windscheid’s construction. But, 
allowing for all exaggeration, the remark remains an extra- 
ordinary tribute to Windscheid. 

In the second draft the amount of pure Roman law was ap- 

218 Windscheid was himself a member of the commission— one of the 
two ‘theorists’? but his direct and personal influence cannot have been 
decisive. Apart from the fact that he was but one among eleven, it should 
be noted that he was not charged with the preliminary draft of any part of 
the code; and that in the general discussion which continued from October, 
1881, through December, 1887, Windscheid participated for the first two 
years only. In October, 1883, he was recalled by the Saxon government to 


his professorial duties at Leipzig, and was obliged to resign from the com- 
mission. | 


Four German Jurists 213 


preciably diminished, and the quantity of ‘ pure Wind- 
scheid ” was lessened in more than the same proportion; but 
in spite of these changes, the civil law of Germany will bear, 
possibly for centuries, as legible an impress of the labors of 
the Leipzig professor as that which the work of Pothier, pro- 
fessor at Orléans, has left upon the civil code of France. 
Bruns was a less prolific writer than Jhering or Gneist, and 
he published no work of such importance as Windscheid’s 
Pandects. His earliest and his latest writings, like Jhering’s, 
were historical.**® The line of research which he opened in 
his Law of Possession in the Middle Ages was carried further 
in an essay on prior possession *”° and in a book on The Pos- 
sessory Actions of the Roman and the Modern Law.” The 
fact that he deplored many of the changes in the law of pos- 
session which were effected in medieval practice, and that, 
like Savigny, he preferred the Roman rules, did not neutralize 
the weightier fact that he showed these changes to be steps in 
a process of development and not a mere series of miscon- 
ceptions. His bias did not prevent him from interpreting the 
Roman rules in a sense more liberal than Savigny’s; nor did 
it prevent others from using the data furnished by him as a 
basis for conclusions divergent from his own. It was thus 
that his Law of Possession, as has been noted in a previous 
article,?’? helped to produce a reaction against Savigny’s re- 
vival of pure Roman law. It should be added that the book 
was characterized by a freer employment of the comparative 
method than was at all usual in the middle of the century. In 
1880, the year of Bruns’s death, appeared his Syrian-Roman 
Law Book of the Fifth Century. This work was the product 
of philological and juristic collaboration: in the establish- 
ment of the text and in the translation Bruns obtained the 
assistance of Eduard Sachau. The commentary, however, 


219 He was also, for many years, an editor of the Zeitschrift fiir Rechts- 
geschichte. 

220 ‘Der dltere Besitz und das Possessorium Ordinarium,” in Jahrbuch 
des gemeinen deutschen Rechts, vol. iv, p. 1 (1860). 

221 Die Besitzklagen des rémischen und des heutigen Rechts (1874). 

222 Political Science Quarterly, vol. x, p. 681. Supra, p. 127. 


214 Four German Jurists 


in which the significance of this provincial compilation of 
Roman law was for the first time clearly brought out, was 
Bruns’s own. The importance of the Syrian Law Book lies, 
as he showed, in the evidence it gives of the variety of provin- 
cial systems that existed in the Roman empire,” of the resist- 
ance which they opposed to codification, and of the con- 
nection between the legislation of Justinian, in the sixth 
century, and the older customs. 

Bruns’s historical investigations, unlike Jhering’s, were 
prosecuted solely for the purpose of making the existing law 
more intelligible. Legal history, in his opinion, ought to be 
“the handmaid of dogmatics.”” Like Windscheid, moreover, 
he devoted the greater part of his energy to the direct study 
of modern Roman law. Had he lived a few years longer in 
that vigorous health which was his till within a few days of 
his death, he also would have published his Pandects. He 
had begun the book.*** As it is, the only permanent record of 
this portion of his life-work, apart from his minor essays, is 
found in the article on “‘ The Roman Law of To-day,” which 
he contributed to Holtzendorff’s Encyclopedia of Jurispru- 
dence; and it is by this and the preceding article on “ The 
History and Sources of the Roman Law” *** that Bruns is 
best known to the “cultured public” of Germany — includ- 
ing in the phrase that class of lawyers, numerous even in Ger- 
many, who lack the time or the energy to follow such minute 
researches as those by which Bruns won his scientific reputa- 
tion. These are not such articles as the title ‘“ encyclopedia ” 
naturally suggests to English readers. ‘They are of such 
length that, printed as we print law books, the systematic 
article alone would make a volume of the same size as 
Maine’s Ancient Law, and the two articles, a volume nearly 


223 Mitteis, Reichsrecht und Volksrecht in den Ostlichen Provinzen des 
romischen Kaiserreichs (1892), p. 30, declares that Bruns underrated the im- 
portance of the non-Roman elements in the Syrian Law Book. 

224 Degenkolb, Karl Georg Bruns (1881), p. 6. 

225 “ Geschichte und Quellen des rdémischen Rechts,” Encyclopddie der 
Rechtswissenschaft, 3d ed. (1877), pp. 77-129; “ Das heutige romische Recht,” 
Ibid., pp. 333-477. In later editions the historical article is revised by Pro- 
fessor Pernice and the systematic article by Professor Eck, both of the Berlin 
University. 


Four German Jurists 215 


as large as Holland’s Jurisprudence. They are not mere 
statements of the dominant views and theories: they present, 
in compact form, the results of original research by an in- 
vestigator of exceptional insight and the conclusions of a 
singularly sane and well-balanced judgment. I know no 
better sketch of the development of Roman law than that 
which is given in the first of these articles. It is legal history 
in the strict sense, not culture history; but it is planned and 
written on broad lines. The second and longer article, on 
the modern Roman law, was greatly admired by Bruns’s col- 
leagues. Windscheid always urged his hearers to study it; 
Goldschmidt pronounced it “ classic.” **° It is the universal 
side of Roman law that is emphasized throughout, and the 
article is more truly a book on general jurisprudence than 
many larger works that bear this title. I know no better ex- 
position of private law from the Hegelian point of view. 


VIII 


The jurists whose work has been examined in the preceding 
papers of this series °*’ confined themselves, in the main, to 
teaching and writing. Gneist’s activities were more varied: 
he was at once professor, author, judge and politician, and in © 
each of these callings he attained distinct eminence. He 
taught at the University of Berlin for forty-six years, and 
during this period his lectures were attended by nearly fifty 
thousand students.”“° He wrote almost as many books, 
pamphlets and articles as Bruns, Windscheid and Jhering 
together,**? and his writings brought him recognition as the 
first publicist of Germany, if not of the Continent.?*° He 


226 Zeitschrift fiir Handelsrecht, vol. xxvi, p. 338. 

227 Political Science Quarterly, vol. x, p. 664; vol. xi, p.-278; vol. xii, p. 21. 

228 In 1886, when Gneist had completed his forty-seventh year of aca- 
demic service, the records of the University showed that more than forty 
thousand students had subscribed for his courses. (Walcker, Rudolph von 
Gneist, p. 11.) In February, 1888, Gneist was appointed instructor of the 
present Emperor (then Prince) William in constitutional and administra- 
tive law. 

229 A list of the chief publications of each of the four jurists was given in 
Political Science Quarterly, vol. x, pp. 664, 665. Supra, pp. 110, III. 

230 The esteem in which Gneist was held by his professional brethren 
is indicated by the fact that he was for twenty years president of the Germarf 
Bar Association. — Walcker, p. 12. 


216 Four German Jurists 


held judicial office for nearly thirty years; he was a member 
during the last two decades of his life of the highest admin- 
istrative court of Prussia; and during his last twelve years he 
sat also in the Prussian Privy Council. He took an active 
part in Prussian and German politics; he was a member, for 
more than thirty years, of the Prussian Chamber of Deputies 
and for seventeen years of the Imperial Diet also; and he 
was recognized as a leader of the right wing of the Liberal 
party. 

Like Bruns, Windscheid and Jhering, Gneist began teach- 
ing and writing in the field of Roman private law. He 
offered the customary Romanistic courses at the University, 
and he published in 1845 a work, which is still regarded as 
valuable, upon ‘“‘ The Formal Contracts of Modern Roman 
Law.*** But a lively interest in public problems and a strong 
desire to aid in solving them were already drawing him out of 
private life and away from private law. He belonged, both 
on the father’s side and on the mother’s,” to that official 
class which for more than a century had been the only po- 
litical class in Prussia; and the conditions of the period 
(1840-48) were such as to excite political interest among 
all educated men., The rhetorical phrases of Frederick 
William IV upon his accession to the throne had ‘fired the 
public imagination and had aroused hopes of the establish- 
ment of constitutional government. The acts and omissions 
of the king during the following eight years converted the ela- ” 
tion of expectancy into the anger of disappointment. During 
these years Gneist added to his Romanistic courses lectures 
on criminal law and procedure, in no wise confining himself 
to the exposition of existing law, but insisting on the neces- 
_ sity of its reform: advocating, in particular, public and con- 
troversial as against secret and inquisitorial procedure, and 
decision by the verdict of an independent jury. These were, 


231 Die formellen Vertrige des neueren romischen Obligationenrechts. 
In 1858 he published a pamphlet dealing with a special question in the same 
field, ‘“De causae probatione stipulatoris,” and also a Syntagma of the © 
Institutes of Gaius and of Justinian. | 

232 Cf. Walcker, pp. 9, 10. 


Four German Jurists 217 


at the time, political questions, and their discussion involved 
or, at least, facilitated the discussion of many other political 
questions.*** Gneist’s next publications were the outcome of 
these courses of lectures: they treated of duels and of 
juries.”** 

_Immediately before the disturbances of 1848 and the es- 
tablishment of constitutional government, Gneist entered 
political life at the only point then open, by seeking and ob- 
taining election to the municipal assembly of Berlin. In 1848 
and in 1849 he stood for election to the Prussian National 
Assembly and to its successor, the Prussian Chamber of 
Deputies; but in both cases he was defeated by the Radical 
candidate.’ In the movements of 1848 and 1849 he ac- 
cordingly participated only in the modest positions of mu- 
nicipal assemblyman and member of the civic militia, which, 
however, gave him opportunity to exercise a moderating in- 
fluence at several decisive moments.”*° The only immediate 
literary result of these experiences was a description of the 
conditions that obtained in Berlin during the revolution.*** 

At this time, as indeed throughout his life, Gneist was a 
moderate Liberal. The central article of the Liberal program 
was the demand for constitutional government, which meant 
representative government created by popular elections, after 
the English fashion. But the imitation, in France and other 
European countries, of English parliamentary institutions 
had not yielded the desired and anticipated results. Wher- 
ever continental constitutionalism had established govern- 
ment by party, the outcome had been partisan government. 
Instead of securing the liberty of the individual, it had merely 
substituted for the arbitrary rule of the crown the equally ar- 


233 Cf, Bornhak, “ Rudolph von Gneist,” Archiv fir offentliches Recht, 
VOl. tie 2, py 4. 

284’ Dor Zweikampj und die germanische Ehre, 1848; Bildung der Gesch- 
worenengerichte, 1849. 

235 Walcker, p. 12; Bornhak, p ii. Gneist’s statement that he declined 
a summons to the national assemblies of that time (History of the English 
Constitution, Author’s Preface, p. iv), although it apparently refers to the 
years 1848 and 1849, must actually refer to the years immediately following. 

236 Bornhak, p. ii. 

237 Berliner Zustande von Marz 1848 zu Marz 1849. 


218 Four German Jurists 


bitrary rule of changing ministries. Instead of securing 
peaceful progress, it seemed to beget an alternating series of 
executive usurpations and popular revolutions. ‘So now 
again, in due course, the Revolution of 1848 was followed, in 
France, by the Coup d’Etat and the Second Empire; in Prus- 
sia, by a period of reaction, guided and utilized by the landed 
aristocracy. As long as these experiments and failures were 
confined to Latin Europe, German writers were at no loss 
for a theory that should exculpate constitutionalism; but 
when similar phenomena revealed themselves in Germany, it 
became clear that the constitutional theory must be re- 
examined. 

To this task Gneist addressed himself, withdrawing from 
active political life *** and abandoning his judicial career.** 
As a pupil of Savigny and a faithful adherent of the historical 
school, he of course went back of continental constitutional- 
ism to its English prototype and proceeded to study the Eng- 
lish constitution in its historical development. Some of the 
preliminary results were given to the public in a paper read 
before the Berlin Scientific Union in March, 1853, which was 
expanded, by the addition of notes, into a pamphlet of a hun- 
dred pages, Nobility and Gentry in England.**° At this time 
Gneist had already convinced himself that the English con- 
stitution could not be comprehended or explained apart from 
the English system of administration, and to the study of this 
system he devoted the next three years of his life. Much of 
this work he afterwards declared was like an excursion 
through a primeval forest.*** The administrative law was 
the unknown part of the English law; in fact, the English 

288 He made no further attempt to enter political life until 1859. Cf. 

supra, Pp. 217, note 235. 
. #89 His resignation of his judicial office in 1850 was primarily a protest 
against the reactionary policy of the Prussian government. If it had not 
been offered then, it certainly would have been offered later; for a man of 
Gneist’s character and opinions could not have submitted to the influence 
which the administration exercised upon the judiciary during the period of 
reaction (in 1850-1858) and the period of conflict (1862-1866). He re- 
sumed his judicial career in 1875. 


240 Adel und Ritterschaft in England. 


ae History of the English Constitution, Preface, p. v; Verwaltungsrecht, 
vol, ii, p. v. 


Four German Jurists 219 


lawyers had not even a name for it. English historians had 
not yet brought out the facts necessary to elucidate its de- 
velopment. Blackstone, a century before, had blazed a path 
into the wilderness, but Freeman and Stubbs had not yet cut 
roads, and Gneist was obliged to struggle through “ the chaos 
of disconnected antiquarian matter piled up around Black- 
stone’s commentaries,” the English statutes and Parliamen- 
tary reports and the decisions of the English courts.*** The 
result of these pioneer labors was Gneist’s magnum opus, his 
English Constitutional and Administrative Law. It first ap- 
peared in two volumes, in 1857 and 1860, and was ultimately 
expanded into four volumes of nearly three thousand pages, 
published between 1871 and 1884."** Printed in the form in 
which our less rugged branch of the Teutonic family handles 
its solid literature, the number of pages and of volumes would 
be doubled. 

Gneist claimed that he had solved the problem which he 
had undertaken to solve, that he had discovered why parlia- 
mentary government worked well in England and badly or 


242 Tbhid.; Verwaltung, Justiz, etc., Vorwort, p. 6; Rechtsstaat, pp. 258, 


59. 

243 The first part of the work, “ Geschichte und heutige Gestalt der 
Aemter in England,” 1857, was expanded in 1867 into two volumes, en- 
titled Das englische Verwaltungsrecht, of which the first volume gave the 
history and the second the modern law. This was again expanded into 
three volumes: Englische Verfassungsgeschichte, 1882, and Das englische 
Verwaltungsrecht der Gegenwart, Allgemeiner Theil, 1883; Besonderer Theil, 
1884. Das englische Parliament in seinen tausendjahrigen Wandlungen, 1886, 
covers to a large extent, but in a more popular way, the same field as the 
Englische Verfassungsgeschichte. Only these two historical volumes have 
been translated into English. The History of the English Constitution, 
. translated by Ashworth, was published in two volumes in 1886 (2d ed., 
1890). The History of the English Parliament has been twice translated, 
by Shee and by Keane, and each of these translations has run through several 
editions. Gneist read the proof of Keane’s translation. 

The second part of the original work, “‘ Die heutige englische Communal- 
verfassung und Communalverwaltung oder das System des Selfgovernment,” 
1860, was expanded in 1863 into two volumes, and appeared in its third 
and final edition in 1871 in one volume, under the title Selfgovernment, 
Communalverfassung und Verwaltungsgerichte in England. Of this part 
there is a French translation: Constitution communale de l’Angleterre, tra- 
duit par Hippert, 5 vols., 1868-1870. 

A condensation of the entire treatise into an article (which, however, 
would make a very respectable English octavo volume) may be found in 
Holtzendorff’s Encyclopddie der Rechtswissenschaft (5th ed., 1890), pp. 


1377-1478. 


220 Four German Jurists 


not at all on the Continent. He found the solution, not 
wholly in the differences between the Teutonic and the Latin 
peoples, and not at all in any difference between the English 
and the German peoples, but in certain political and legal in- 
stitutions which had been developed in England, but were 
lacking in Latin Europe and were only imperfectly developed 
in Germany. There were differences, he recognized, between 
the Teutonic and the Latin peoples, — differences which 
made the establishment of constitutional government among 
the latter more difficult, — but these differences, he believed, 
were largely the result of their different institutions. In its 
administrative and judicial institutions especially England 
had solved the chief problems of public law —“ problems 
which had made Germany doubt and France despair ” —as 
adequately as Rome had solved the chief problems of private 
law.*** The trouble with continental constitutionalism was 
that English public law had been received only in part, and 
that the part which had been ignored was the necessary basis 
of the part that had been selected. 

These convictions gave to Gneist’s literary work, from 
1857 on, a propagandist character. He did not advocate a 
general imitation of English institutions; he maintained that 
in many respects the Prussian institutions were better than 
the English. He did not advocate the simple transfer to his 
own country of any English institution, for he recognized 
that every nation must develop its policy along its own lines. 
He advocated the recognition and acceptance of the prin- 
ciples which he found embodied in certain English institu- 
tions and the development, in accordance with those prin- 
ciples, of equivalent Prussian and German institutions. In 
this way, he believed, it would be possible to organize a Ger- 
man constitutional state which should improve upon the Eng- 
lish model. In the first edition of his English Constitutional 
and Administrative Law the missionary spirit was clearly dis- 
cernible: he emphasized throughout the differences-between — 
English and continental institutions and the points in which 


244 Verwaltung, Justiz, etc., p 3; Verwaltungsrecht, p. 4. 


Four German Jurists 221 


the former were superior. In the last edition of the Admin- 
istrative Law he added to the title the words “in comparison 
with the German administrative systems.” During ‘the 
thirty-six intervening years he published several books and 
many pamphlets and articles which were simply longer or 
shorter tracts for the dissemination of sound constitutional 
theories. In 1864, in an article of a hundred pages on the 
Representative System in England,”** he made a first attempt 
to popularize his views. In 1869 he published, for the benefit 
of the legal and official classes, an elaborate comparison be- 
tween the English, French and German administrative and 
judicial systems; and since nearly every subsection on Prus- 
sian conditions concluded with suggestions de lege ferenda, 
the work presented a complete program of reform. In spite 
of its uncouth title, Administration, Justice, Recourse to the 
Courts, Central Administration and Self-government,’** the 
book reached the classes for which it was written; and when, 
ten years later, Gneist assured us, his students, — not 
naively, but with an admirable detachment of his public from 
his private personality, that this book had ‘“ made an 
epoch,” he did not exaggerate its importance. Another at- 
tempt to influence German legal opinion was made by him in 
1871, in an address of welcome delivered on behalf of the 
Berlin Juristic Society to the legal members of the first Ger- 
man Parliament. This address was published in 1872, under 
the title of the Jural State.?*7 In special studies, moreover, 
regarding city and county government, public schools, taxa- 
tion, the budget, the organization of the bar, judicial pro- 
cedure and the powers of the courts,”** — studies published, 

245 “Das Reprdsentativsystem in England,” in Haxthausen, Das Con- 
stitutionelle Princip, vol. ii, pp. 87-180. 

246 T translate only a part. The full title is: Verwaltung, Justiz, Recht- 
sweg, Staatsverwaltung und Selbstverwaltung nach englischen und deutschen 
Verhdltnissen. 

247 Der Rechtsstaat und die Verwaltungsgerichte in Deutschland. A 
second enlarged edition appeared in 1879. There is an Italian translation by 
del Artom, Lo Stato secondo il dirritto, 1885. 

248 For example: “Das englische Grundsteuersystem” (an advance 
instalment of his Englische Communalverfassung), 1859; Soll der Richter 


auch tiber die Frage zu befinden haben, ob ein Gesetz ver fassungsmassig ZU 
Stande gekommen? 1863; Budget und Gesetz, nach dem konstitutionellen 


t 


222 Four German Jurists 


as a rule, when the topics treated were under legislative con- 
sideration, — Gneist drew upon the reservoir of political wis- 
dom which he had found walled up within the English public 
law, and sent its vivifying waters trickling over the arid fields 
of the German Polizeistaat. 

In this mass of scientific and controversial literature there 
is an amount of repetition that is very wearisome to the 
reader of to-day — repetition not only of facts and conclu- 
sions, which was inevitable under the circumstances, but of 
words and phrases also. Gneist, however, would have 
deemed it a waste of time to search for different ways of say- 
ing the same thing. If he found it necessary to describe again 
occurrences or tendencies which he had described before, he 
did it in the same words as before; and when he had settled 
on the phrase which to him best expressed a certain idea, he 
used it not only to the end of the chapter but to the end of 
his life. He was preaching to a nation a political gospel, line 
upon line, precept upon precept, and simple iteration deep- 
ened the impression without blurring it. No collection of his 
miscellaneous writings has been made, nor is it likely that 
posterity will demand one; but selections from these writings 
are preserved in condensed and imperative form in the laws 
of Prussia and in those of the German Empire. 

The character of Gneist’s writings makes it easy, in spite 
of their great volume, to disengage the principal political 
ideas which they contain; but to make these ideas completely 
intelligible to English or American readers it is necessary, in 
many cases, either to abandon Gneist’s form of statement, at 
the risk of failing to give full expression to his thought, or to 
explain the peculiar sense which he attached to certain words 
and phrases —a sense so different from that in which we 


Staatsrecht Englands, 1867; Freie Advocatur, die erste Forderung aller 
Justizreform in Preussen, 1867; Die Selbstverwaltung der Volksschule, 1869; 
Die preussische Kreisordnung, 1870; Vier Fragen zur deutschen Strafpro- 
cessordnung, 1874; Ueber den Entwurf einer deutschen Strafprocessordnung, 
1876; Zur Steuerreform in Preussen, 1878; Gesetz und Budget, constitu- 
tionelle Streitfragen aus der preussischen Ministerkrisis, 1879; Zur Ver- 
waltungsreform und Rechtspflege in Preussen, 1880; Die preussische Finanz- 
reform durch Regulirung der Germeindesteuern, 1881. 


Four German Jurists 222 


commonly employ them as to make his language, to other 
than German readers, obscure or even misleading. When, 
for example, he described certain tendencies in a nation as 
“social,” he did not mean that they made for the good of the 
nation, but the opposite: they were tendencies which we 
should describe as anti-social. Neither did he mean that 
they were socialistic; on the contrary, the tendencies which 
he reprehended as social were, in most cases, tendencies of 
the property-holding classes. Behind his use of the words 
“society ” (Gesellschaft) and “social” (gesellschaftlich) 
lay a whole system of social philosophy. 

This system was not of his own making. For a German, 
Gneist was not much of a philosopher. His aims were highly 
practical, and his close touch with life as a judge and a poli- 
tician checked, in his case, that tendency to the overvaluation 
of abstract concepts which was so common in Germany in the 
nineteenth century. Regarding “‘ philosophic constructions ”’ 
in public law he occasionally used language as disrespectful 
as that employed by Jhering regarding similar constructions 
in private law. The constructions, however, which Gneist 
disliked were those of the older natural-law type. Construc- 
tions that were, or seemed to be, based upon “ positive knowl- 
edge of things ” **° — constructions, especially, that were de- 
rived from the study of history — were as attractive to him 
as to the other members of the German historical school. In 
the writings of Lorenz Stein he found a social philosophy 
which appealed to him and which he thenceforth used. It 
was from Stein’s point of view that he originally approached 
the study of English constitutional history, *°° and to the end 
of his life he expressed his political ideas in Stein’s phrases.*”* 


249 History of the English Constitution, Preface, p. iv. 

250 Cf. Adel und Ritterschaft, p. 55; Der Rechtsstaat, p. 333; History 
of the English Constitution, Preface, p. iv. Cf. also Gneist’s letter to Stein, 
published in Haimerl’s Oesterreichische Vierteljahresschrift fiir Rechts- und 
Staatswissenschaften, vol. xviii, ‘‘ Literaturblatt,” p. 56. 

251 Die nationale Rechtsidee von den Standen und das preussische Dreik- 
lassenwahlsystem, 1894, passim. The English reader will find an elaborate 
restatement of Stein’s theories in the first portion of Gneist’s English Par- 
liament. 


224 Four German Jurists 


For this reason, and also because of its intrinsic interest, 
Stein’s system deserves a somewhat careful examination. 


IX 


Stein’s social philosophy was elaborately set forth in 1850, 
in his History of the Social Movement in France,’” a study 
of the French revolutions from 1789 to his own time. The 
value which the author attached to concepts is indicated by 
his remark that “ the knowledge of human things differs from 
other knowledge in that the single facts have no value if they 
be not comprehended in the unity of a concept.” *** His con- 
cept of the state is thoroughly Hegelian: the state is “ the 
community (Gemeinschaft) manifesting itself in its per- 
sonality as will and act.’ *°* The state, however, is not the 
only form in which the community manifests itself; in its 
economic organization it possesses “ an equally solid, equally 
vast and equally powerful organic unity,” *°° and this unity 
is society (Gesellschaft). Stein’s state and Stein’s society 
are in perpetual conflict, because they represent opposing 
principles. The principle of the state is to secure the highest 
possible development —7.e., the greatest possible wealth, 
power and intelligence — of all its individual members, be- 
cause the degree of development attained by its members is 
the measure of the development attained by the state itself. 
The state must desire, further, that each of its members par- 
ticipate in forming its will, both on its own account, because 
the sum of human insight is always greater than the greatest 
insight of any individual, and on account of the individual, 
because of the educating and elevating influence of political 
liberty. The principle of the state, therefore, demands prog- 


252 Geschichte der socialen Bewegung in Frankreich von 1789 bis auf 
unsere Zeiten. The work consists of three volumes with separate titles: 
I. “ Der Begriff der Gesellschaft und die sociale Geschichte der franz6sischen 
Revolution bis zum Jahre 1830.” II. ‘Die industrielle Gesellschaft: der 
Socialismus und Communismus Frankreichs von 1830 bis 1848.” III. “ Das 
Konigthum, die Republik, und die Souveranetaét der franzésischen Gesell- 
schaft seit der Februarrevolution 1848.” A second edition, from which I 
quote, was published in 1855. 254 Ibid., p. XV. 

253 Begriff der Gesellschaft, p. xii. 255 [bid., p. xxviii. 


Four German Jurists g25 


ress through liberty towards equality; and in pure theory, as 
Stein recognized, the democratic republic is the ideal form of 
the state.’°° 

Stein’s society, z.e., the community in its economic organi- 
zation, exhibits tendencies precisely contrary to those of the 
state. Property, which is at once the product of labor and 
the basis of further production by labor, invariably concen- 
trates itself in the hands of a part of the community; and 
those members of the community who have only labor power 
become dependent on those who have property. Family and 
inheritance perpetuate this inequality and divide society into 
more or less permanent classes; and the propertied class 
strives, more or less consciously, to perpetuate and increase 
its own power and the dependence of the laboring class. 
Class interest is the active principle of society, and its neces- 
sary tendency is through inequality toward the destruction 
of liberty. 

What now is the course and what is the outcome of this 
conflict of tendencies, or, to use Stein’s own language, of this 
antithesis of principles? As soon as we descend from the 
airy region of concepts and consider actual conditions, the 
field of conflict is shifted and the character of the conflict is 
changed. The conflict is not fought out between state and 
society; for the state, regarded as an organization independ- 
ent of society, is “‘a pure concept.” **’ No such state has 
ever existed. The actual state is always based on society, 
and it is always controlled by society. This control is in- 
evitable, because the state can will and act only through indi- 
viduals, and every individual brings with him into his activity 
as legislator or administrator the views and tendencies of his 
social class. More precisely, the control of the state by so- 
ciety is its control by the propertied class, because in this 
class is chiefly to be found the ability required for public 
office. This rule of the propertied class, however, is not in- 
consistent with the principle of the state. That principle 


256 Das Konigthum, die Republik, etc., pp. 133 et seq. 
257 Begriff der Gesellschaft, p. xlviii. 


226 Four German Jurists 


does not require the abolition of the social order, but only the 
effort to raise the dependent and unfree into independence 
and freedom. What is distinctly contrary to the principle of 
the state is the misuse of the power of the state by the prop- 
ertied class to perpetuate the dependence of the laboring class 
and to make it impossible for members of that class to 
struggle up into the ruling class. To this misuse of political 
_ power, however, the ruling propertied class is always prone. 
It not only denies to those who have no property any active 
participation in the state, but it shapes law and administers 
government in its own interest. 

Changes in the organization of the state, whether they are 
accomplished by reform or by revolution, are always the re- 
sult of a want of correspondence between the political and 
the economic organization of the community. They are 
caused by the fact that those who have wealth, and are thus 
socially independent, are excluded from participation in the 
state. When the change is accomplished by revolution, the 
holders of new wealth commonly secure the aid of the labor- 
ing class by preaching liberty and equality; but in the end 
this class is excluded, as before, from political power. With- 
out social (7.e., economic) independence, political liberty is 
impossible. ; el 

In the actual world, accordingly, the conflict for liberty 
must be waged in society; and the prize aimed at must be, not 
liberty for all, which is unattainable, but the chance of lib- 
erty. The principle of the state shrinks to the modest de- 
mand that the possibility of acquiring property and influence 
in the state shall be kept open for the laboring and subject 
class. But how is even this end to be realized, when its real- 
ization involves the sacrifice, by the propertied and ruling 
class, of a part, at least, of its class interests? It is hinted, 
early in the discussion, that the solution is to be found in a 
principle higher than that of the state or that of society — in 
the principle of the community. In Stein’s philosophy the 
community is the higher unity which comprehends both state 
and society; and while the tendency of the state is toward the 


Four German Jurists 227 


independence of all its members, and that of society towards 
the dependence of the majority of its members, the principle 
of the community is the interdependence of all its mem- 
bers.*** If labor is dependent on property, property in turn 
is dependent on labor. Property yields income only through 
the cooperation of labor. Harmonious codperation cannot 
be secured if the members of the laboring class work without 
hope of bettering their position. It is, accordingly, in the 
interest of property that labor shall yield to the laborer some- 
thing more than the mere necessities of existence. This 
higher interest, it must be admitted, is seldom recognized by 
the propertied class, because the immediate and obvious 
interest of this class lies in the exploitation of the laboring 
class. Its members, however, may be somewhat enlightened 
by agitation; and social reforms that are really in its own 
interest, as well as in that of the laboring class, may be car- 
ried through by legislation. This is where the state comes 
in again, and particularly the state with a king at it head. 
The hereditary king stands above society and is therefore 
in a better position than any other human being to conduct 
reform movements to a successful issue; and if the king 
undertakes this task, monarchy, even in a constitutional 
state, may preserve something of the substance of political 
power.” 

Stein’s society, the reader will note, is as pure a concept 
as his state. It is an abstraction, like the ‘‘ economic man ”’ ; 
it is, in fact, the sum of all the members of the community 
considered as economic beings. Such an abstraction is per- 
fectly legitimate. It may be a useful counter in our social 
reckoning. Its usefulness, however, depends upon the way 
in which it is used. The use made by Stein of this particular 
abstraction is to discover the tendency of economic society. 
This society is studied in action, and particularly in its 
action upon the state. As soon, however, as its action is 

258 “Das fiir einander Vorhandensein der Einzelnen in der Vielheit ist 
die Gemeinschaft.” — Begriff der Gesellschaft, p. xiv. 


259 Begriff der Gesellschaft, pp. xxxvii, xxxviii; Das Konigthum, die Re- 
publik, etc., pp. 45-49. 


228 Four German Jurists 


examined, we perceive that it is never the whole body that 
acts: it is always a class, and usually the propertied class. 
To term the interests and tendencies of this class “ social ” 
is inexact and confusing, because it suggests that they are 
the interests and tendencies of the entire body. Stein not 
only does this, he goes further: he actually accepts this 
self-suggestion. Because the chief interest of the dominant 
propertied class, which is domination, tends to prevail over 
the chief interest of the dependent laboring class, which is 
independence, the interest of the former class, disguised 
under the generic term “class interest,’ *°° is declared to 
be “‘ the active principle’ of economic society; and the re- 
sult of the conflicting interests and tendencies of the two 
classes, viz., the increasing dependence of the laboring class, 
is declared to be the tendency of that society. In other 
words, a tendency which manifests itself 72 economic society 
is presented as a tendency of that society. This is hardly 
worthy of a philosopher who has undertaken to comprehend 
the facts of human life ‘‘ in the unity of a concept,” since it 
is in fact from the duality of his concept ** that his results 
are derived. 

This criticism, however, touches the form rather than 
the essence of Stein’s tech Stripped of its philosophical 
trappings, his theory gives us, primarily, an estimate of the 
tendencies of man as an economic being acting in an economic 
organization, viz., the class. The theory, however, does 
260 Cf. Begriff der Gesellschaft, pp. xl, xli. 

261 Tt is singular that Stein should not have perceived that he was 
using the word ‘“‘ society ” in two senses, for the double meaning with which 
he charged it involved him in contradictions. His society is distinguished 
from his state in that the state is personal, while society is impersonal; in 
that the state has a will, while society has none. But in one passage we are 
told that both state and society “ will definite ends” (“wollen ein Be- 
stimmtes ” — Begriff der Gesellschaft, p. Xxxlii) ; and in another passage — 
that in which the principle of society is first formulated (p. xxxviii) — the 
question is put: “How can that which is impersonal have a principle of 
action? ” and this question is begged by the answer that society acts through 
individuals. Stein here forgot that he had said the same of the state, — 
that it acts only through individuals, — and he failed to answer the ques- 
tion he had just proposed, which was really: ‘“‘ How can the economic or- 
ganization determine the direction of its action, z.e., how can it will?” The 


explanation of these contradictions is, of course, that when he speaks of so- 
clety as willing or acting, he is thinking of the dominant class. 


Four German Jurists 229 


not stop here. It considers also the tendencies of man as a 
citizen, acting in the state; and it takes into account, how- 
ever slightly and inadequately they are presented, the tend- 
encies of man as a moral being, acting in the community. 
F inally, the theory indicates, not formally in any one pas- 
sage but by assertion and implication in many passages, 
the resultant of all these different tendencies; and this is the 
triumph, all along the line, of the economic side of human 
nature. The propertied class, which is dominant not only in 
the economic organization of the community but also in its 
political organization, does not feel or think or act politically 
or morally, but always economically. It rules in the state 
but it does not consider the ends of the state. It is the only 
factor that counts in the community, but even as a portion 
of the community it is unaffected by sympathy or conscience 
or any other moral influence, except when the line of 
conduct supported by such feelings happens to coincide 
with its own ultimate interests. The theory assumes the 
prepotency of economic interests in determining the conduct 
of the individual, and derives from this assumption the 
supremacy of the interests of property in society, state and 
community. 

Gneist constantly used Stein’s phrases and never, to my © 
knowledge, wrote or spoke of Stein’s system with anything 
but approval; but he made significant additions which ren- 
dered his own system much less one-sided. To the political 
and economic organizations of the community he always 
added the ecclesiastical. The Christian church is a make- 
weight against the undue power of wealth; like the state, 
it makes for liberty and equality and resists the exploitation 
of the poor. It does this, at least, as long as it is true to its 
mission.“°* Like the state, the church is liable to be cap- 
tured and controlled by society, 7.e., by property interests; 
but this is a pathological, not a normal, condition; and when 


262 Rechtsstaat, pp. 5-13; Higenart des preussischen Staats, p. 6; History 
of the English Constitution, vol. i, pp. 84, 104; vol. ii, pp. 699, 700; Stande 
und Wahlsystem, pp. 15 et seq. 


220) Four German Jurists 


it occurs, there is likely to be a reformation.*** ‘The same is 
true of the state; it is not normally controlled by property 
interests. In Gneist’s theory, as in Stein’s, it is natural that 
the propertied classes shall rule in the state; but, according 
to Gneist, it does not follow that they shall rule the state 
itself, making its power subserve their economic interests. 
If they do this, there is likely to be a reassertion of the 
idea and of the power of the state. In Gneist’s system 
church and state stand over against society as independent 
factors, influenced indeed by the social basis on which they 
rest, but themselves influencing society and, in case of need, 
building their social bases anew.*°* ‘The church educates 
men to morality; the state trains them to political con- 
sciousness. Both deal, in their work, with instincts quite 
as deeply rooted in human nature as are the economic in- 
stincts. Gneist’s writings differ greatly from Stein’s in the 
value ascribed to duty as a motive. In Stein’s book moral 
considerations are rarely mentioned; and when they are 
mentioned, they are presented as the cloak of class interests. 
To Gneist, duty was as imperative as it was to his country- 
man Kant, and he assumed that it appealed in a similar 
way to his fellows.*®° 

There are other points of difference on which I can only 
touch. In Stein’s system, no special place is made for the 
educated class. ‘ Spiritual goods ” are recognized, but they 
are treated merely as means for obtaining material goods; 
and it is assumed that, as soon as the clergy and the other 
professional classes acquire property, their sentiments and 
tendencies become substantially identical with those of land- 
holders and capitalists. In Gneist’s writings, much greater 


263 Gneist accounted for the Protestant Reformation in this way. — 
Rechtsstaat, p. 100; Eigenart des preussischen Staats, pp 8, 9; Stande und 
Wahlsytem, pp. 46 et seq., 174 et seq. 

264 See, especially, Stande und Wahlsystem, pp. 15, 170. 

265 “Jn the coarsest man, deep sunk in selfishness and materialism, we 
often see an unexpected awakening of sympathy and conscience and a return 
to the fulfillment of human duties. — Rechtsstaat, p. 328. Cf. Stande und 
Wahlsystem, pp. 12-16. When Freund (Thaten und Namen, p. 20) asserts 
that Gneist regards men as slaves of purely egoistic motives, he is misled by 
Gneist’s uncritical use of Stein’s phrases. 


Four German Jurists 227 


importance is attached to the educated class. Not only is the 
clergy treated as something more and something other than 
a section of the propertied class, but the same view is taken 
of the professional officials of the state and of the profes- 
sional classes generally. Finally, while there are in Stein’s 
system but two really important classes, the Haves and 
Have-nots, in Gneist’s books there is discernible, between 
wealth and poverty, a middle class, and to this class is at- 
tached something of the importance usually attributed to 
it by writers on politics. 


x 


Of all the additions which Gneist made to Stein’s theory, 
that on which he most insisted is the power of the state to 
make men political—to imbue them, as he expressed it, 
with the “‘consciousness of the state” or, more simply, 
with “ practical knowledge of the state and the right feel- 
ing for it.” °°° It is able to do this by holding them to the 
personal performance of public duties. If it so shapes its 
institutions as to draw into its service all of its citizens who 
are capable of serving it, it will succeed in educating to its 
ends not individuals only but whole classes. If it distributes 
the burdens of its service according to the capacity of its 
citizens to bear them, the heaviest burdens will fall upon 
property. If it gives political power to those who bear its 
burdens in proportion to the burdens borne, it will intrust 
governmental authority chiefly to the propertied classes. 
These, however, under such a system, do not rule as prop- 
ertied classes; they rule by right of service.*°* They may 
misuse their power, at times, to promote the interests of 

266 History of the English Constitution, vol. ii, p. 438. 

267 According to Gneist, the propertied classes have never obtained 
power in the state by their wealth merely, nor even by the superior in- 
telligence that is commonly associated with wealth. They have always had to 
earn power by service, and ordinarily they have served for generations before 
their position in the state has obtained legal recognition. They may indeed 
retain the power thus acquired for generations after they have ceased to 
serve; but sooner or later the state will be so reconstructed as again to 


apportion power according to service, rights according to duties. Cf. 
Eigenart des preussischen Staats, p. 14. 


222 Four German Jurists 


the classes to which they belong, but they will not do so in 
the long run, for by the habitual performance of public duties 
they are trained to “ right feeling.” This is Gneist’s “ har- 
mony of state and society” ; and this, and not conflict, is 
the normal relation between his society and his state. 

It follows that social classes are not, as Stein maintained, 
purely economic products. In harnessing them into its ser- 
vice the state modifies not merely their instincts and aims, 
but their structure. In England, for example, as Gneist 
pointed out in his first work on English constitutional de- 
velopment,’** the country gentry and the burgesses were 
brought together by the state into a single class, the Com- 
mons; and this he pronounced the most striking event in 
English history. The organization of society by the state 
and for the state is not only possible, it is necessary; and 
the chief problem of the modern state is to find the proper 
organization (Ordnung) of modern industrial society. 

It follows, again, that in a properly organized state parties 
are not social, as Stein regarded them, but political; that they 
do not represent conflicting class interests, but divergent 
views concerning public policy. The appearance of purely 
social parties is a symptom of disease in the body politic; 
it indicates the necessity, to use Gneist’s own phrase, of a 
“recombination (Wiederverbindung) of state and society,” 
7.€.,a readjustment of services and powers, duties and rights. 

As a means of educating men to right views of the state 
and the right feeling for it, nothing, in Gneist’s opinion, can 
take the place of habitual personal service *°® — not the press, 
nor meetings, nor any other expression of so-called public 
opinion, nor even frequent elections. The press can only 
reproduce and emphasize, for each social class or group, its 
own thoughts, which are the expression of its own interests. 
Public meetings bring together only those who are already 


268 Adel und Ritterschaft, pp. 32-34. 

269 “ For the individual who confronts the state without responsible and 
personal activity in the service, the ego is the central point of the common- 
wealth. The existence of coérdinate rights, views and interests is ignored.” 
— Verwaltung, Justiz, etc., p. 115. 


Four German Jurists 233 


in sympathy and agreement.” In a community untrained 
by public service, what is called public opinion is only class 
opinion; there is no public opinion. A semblance of public 
opinion may be created by concealing inconsistent views 
and divergent tendencies under platform phrases; *” but 
when the attempt is made to translate these phrases into 
facts, it becomes evident that they represent no “ energetic 
total will.” *? Voting has no intrinsic educational value: 
“never in all the centuries have mere elections produced 
political sense or capacity for public activity.” ** Election 
is essentially a social device, a method by which groups of 
men associated for common purposes find agents to do their 
will. It is the method, for example, by which the 
joint-stock company organizes itself and obtains officers. To 
the citizen whose public activity is confined to paying taxes 
and voting at elections, the state may well seem a larger 
joint-stock company. There is nothing in the mere process 
of voting 


to enlighten men as to the difference between voluntary 
associations and political unions — between associations for 
what one can do and wishes to do, and unions for what one 
ought to do and must do. ... For every people that is. 
relieved of the burdens of direct and personal public activity, 
there is an empty space between the state and the in- 
dividual — a void that is not to be filled by the reflection of 
individuals, nor by the interchange of thoughts in speech or 
writing, nor by the combination of these thoughts into 
philosophic systems.”™ 


What Gneist most admired in the English polity and was 
most eager to see imitated in his own country was the way 
in which England had utilized the services of the propertied 
classes in country and local government: the landed gentry 
acting as county magistrates, the yeomen and burgesses 

270 [bid., p. 60. 

271 Jbid., Vorwort, p. vii; Reprdsentativsystem, p. 166; Rechtsstaat, 


Pp. 241, 245. 2138 Tbid.,-p: 167. 
272 Reprasentativsystem, p. 158. 274 Ibid., p. 160. 


Te Four German Jurists 


serving on juries and filling the parish offices and both meet- 
ing periodically at quarter sessions. The administration 
which they conducted — as it existed in the days before the 
first Reform Bill and still exists in part—Gneist termed 
“self-government,” because the officials were not sent in 
by the central government but were selected from among 
the people of the locality, and because they did their work 
in an independent way with little intervention on the part 
of the ordinary courts and no interference on the part of the 
the central administration. He was careful not to describe 
the system as “ local ” self-government, for he was especially 
anxious to have it understood that the functions intrusted | 
to it were not solely or even mainly local. English self- 
government, he insisted, had never been anything but a 
branch of the general adminstration of the state. 


The county, borough and parish authorities are not em- 
powered to develop and shape a local militia system, a local 
administration of justice, a local poor relief and local taxes, 
according to their own judgment and the local interests: 
all that they do is to discharge as officers and organs of the 
state the duties of the state as determined by law.*’” 


Logically accordant, in Gneist’s view, with this relation 
was the fact that the authorities of county and parish govern- 
ment were appointed, not elected; that the acceptance of 
office was compulsory, and that service was unpaid. All 
classes served the state according to the measure of their 
capacity because it was their duty. In the “ honorary office ” 
(Ehrenamt) Gneist saw the fullest and final expression of the 
just relation between wealth and service and between ser- 
vice and power. Election and voluntary and paid service 
were to him “social principles” ; appointment and com- 
pulsory and unpaid service, political principles. : 

Gneist admired English self-government, further, because 
it was government according to law and thus constituted 
the firm substructure of the “ jural state.” Bit by bit, as he 


275 Reprdsentativsystem, p. 153. 


Four German Jurists 235 


pointed out, all the details of local administration that were 
capable of legal regulation had been regulated by acts 
of Parliament, until by the patient labor of centuries Eng- 
land had obtained the most complete and most minutely de- 
tailed administrative law in the world. Hand in hand with 
this development went the transformation of the local offices 
into “ jurisdictions.” As the duties of the county authori- 
ties came to consist more and more in the application of 
written laws, these authorities became more and more judi- 
cial in their character. As police magistrates, the justices 
of the peace were judicial officers from the outset; but they 
were also charged with many administrative duties. In 
the discharge of these duties, in so far at least as their dis- 
charge affected the private rights of individuals, the pro- 
cedure of the justices was surrounded more and more with the 
guaranties of judicial procedure: it was made formal, public 
and controversial. The most important result of this trans- 
formation was the protection of the individual against the 
misuse of administrative power; but a secondary result was 
an increase in the educational efficacy of self-government. 
All public service is of educational value, but the highest 
value attaches to service in the administration of the law, 
whether as juror or justice, because such service develops 
the sense of fair play.’*® 

276 Some of Gneist’s German critics have accused him of idealizing the 
English justices of the peace —of ascribing to them a freedom from class 
prejudice and a spirit of fairness which they did not possess. They have 
cited statements made by English writers, conveying a much less favourable 
judgment regarding these magistrates. Cf. Bornhak, p. xvii, citing Macaulay; 
also Freund, Thaten und Namen, p. 16, note 2. Gneist, however, instituted 
no comparison, as do these writers, between the English justices of the 
peace and the salaried professional judges either of England or of other 
countries. He compared their administration of police justice, from the 
fourteenth century to the nineteenth, with the manorial jurisdiction ex- 
ercised simultaneously by the great landed proprietors on the continent, 
and he found it incomparably fairer and less oppressive. He compared them 
as administrators with the paid officials who conducted the local administra- 
tion in France and in Germany in the eighteenth and nineteenth centuries, 
and he conceded that they did not always do their work as efficiently; but 
this disadvantage was more than counterbalanced, in his opinion, by their 
independence, which made it difficult to use them as instruments of party 
policy. He compared, above all, the class to which they belonged with the 


landed aristocracies of France and Germany; and he found in the English 
gentry a sympathy with other classes, both in country and in town, a desire 


236 Four German Jurists 


In all administration there is necessarily a wide field of 
discretion; and not all the functions intrusted to English 
county and parish authorities were susceptible of detailed 
legal regulation. In English self-government guaranties 
against the abuse of discretionary powers were sought (and, 
as Gneist believed, found) in the social position of the 
justices of the peace, in the sense of fairness developed in 
what was practically a life tenure of a quasi-judicial position 
and in the principle of joint action in all matters of impor- 
tance. 

The result of this whole development was decentralization 
of the most admirable sort: not decentralization of legisla- 
tion, which is autonomy, but decentralization of administra- 
tion. Under the laws enacted by Parliament and inter- 
preted by the ordinary courts, English county and local 
government was practically self-controlling. The ordinary 
courts retained jurisdiction in questions of law; but in ques- 
tions of fact and in matters of discretion the decisions of 
the justices of the peace in quarter sessions were final. ‘The 
crown and its ministers ceased to interfere at all with the 
course of county and local administration, and Parliament 
ceased to intervene otherwise than by legislation. The local 
independence thus established was historically the result 
of the fact that the county authorities were socially inde- 
pendent by reason of their rank and wealth, and politically 
independent because they received no pay. The man who 
works without pay will commonly work in his own way or 
not at all. To these elements of strength must be added 
what Gneist called the “ collegial’ organization of the jus- 
tices of the peace, 7.e., their constant association with each 
other at sessions and in boards, and the resultant esprit de 
corps. 

It was on this system of self-government, as Gneist con- 
stantly insisted, that the whole parliamentary system of 
for even-handed justice to all, high and low, a respect for law and a sense 
of duty to the community, which he did not find developed to anything 


like the same degree among the seigneurs of France or the Junkers of 
Prussia. 


Four German Jurists eae 


government in England rested. Representation in Parlia- 
ment was not granted to persons inhabiting a certain arbi- 
trarily defined district; it was granted to neighborhoods 
organized for self-government. Parliamentary suffrage was 
not given to individuals as a natural right; it was given to 
those who discharged political duties. It was not given to 
property as such; the possession of property imposed duties 
of service, and the duty of service carried with it electoral 
right. Constituencies associated in self-government and 
educated by continual personal service, members of Parlia- 
ment trained for the state by lifelong service in honorary 
offices, a people fitted for self-government in gross by self- 
government in detail — these were the elements that made 
parliamentary government possible; and parliamentary 
government, which is of course party government, was 
shielded against the sins which most easily beset it by the 
fact that the whole sphere of internal government was 
practically removed from ministerial control. These views 
of the character and the significance of English self-govern- 
ment so pervade all Gneist’s writings that any selection of 
particular citations is at once difficult and unnecessary. One 
striking passage, however, deserves notice. 


In the English administrative organism it is the intermedi- 
ate structure of self-government which gives to the whole 
tension and life and to the single parts political independence. 
As it proceeded out of absolutism, so English administration 
would revert to the absolute form if the activity of the higher 
and middle classes in the self-administration of state func- 
tions should be brought to an end. After taking out this 
intermediate structure nothing would be left but a bureau- 
cratized police-state."” 

277 Verwaltung, Justiz, etc., p. 91. It may be noted that Gneist attributed 
the capacity of the American people for self-government to the institutions 
which the colonists brought with them from England, and particularly to 
the fact that American administration is so largely conducted by the people 
and not turned over to professional officials. Of our political capacity 
Gneist had a high opinion, founded largely, as he once told me, on his ob- 
servation of his American students in the fifties. At that time he had in his 


lectures a considerable number of students from the South as well as from 
the North, and he repeatedly contrived to get them together at his own 


238 Four German Jurists 


The changes in this system that began in 1832 with the 
first Reform Bill and have continued to our day were, in 
Gneist’s opinion, ill-advised and unfortunate. He recognized 
fully that the accumulation of new wealth unrepresented in 
Parliament necessitated a reform of the suffrage, but he dis- 
approved of the innovation by which suffrage was made to 
depend upon a naked property qualification, without cor- 
responding duties of personal service.**° He recognized 
fully that some parts of the English internal administration 
had worked badly; but he believed that the defects could 
have been remedied without abandoning the principle of the 
compulsory unpaid services of the propertied classes. The 
occupation of the field of local government by a host of 
professional paid officials and the extension of central ad- 
ministrative control that accompanied this invasion, meant 
to him the passing of that old England that he admired. 
The collection of men untrained by personal service into 
elected councils which had only appointing, tax-voting and 
supervisory functions, and which could not intelligently ex- 
ercise the latter functions because of their lack of practical 
experience — this was to him not self-government. The 
movement seemed -to him an overrunning of the state by 
society.” 


house and to set them to discussing the slavery question. In these dis- 
cussions he was much struck by the fairness and good temper shown on 
both sides. In his later writings he expressed a less favorable judgment re- 
garding the development of our institutions. 

278 He believed that the difficult problem of the suffrage—a problem 
especially difficult in the cities — could have been solved by introducing the. 
Prussian three-class system, making the members of the first two classes 
(those who pay two-thirds of the total direct taxes) liable not only to jury 
duty but to compulsory service in “ honorary offices,” and causing the mem- 
bers of the third class to elect representatives who should be charged with jury 
duty and bound to accept communal offices. Suffrage, according to his sug- 
gestion, should then be given to all the members of the first two classes and to 
the elected representatives of the third. (Verwaltung, Justiz, etc., pp. 124, 
125.) He also proposed the modification in the same sense of the three-class 
system in Prussia — a system which he disliked because it made suffrage inde- 
pendent of service and distributed voting power simply according to the 
amount of taxes paid. (Ibid., p. 131.) He came back to this subject twenty- 
five years later in his Stdnde und Wahlsystem. 

279 For a study of both the old system and the new, cf. Goodnow, 
‘Local Government in England” and “The English Local Government 
Bill,” Political Science Quarterly, vol. ii, p. 638; vol. iii, p. 311. For Gneist’s 
latest utterances on the subject, see Stande und Wahlsystem, pp. 149-169. 


Four German Jurists 230 


With the political philosophy which was developed to 
justify and further these changes he had no patience. In- 
stead of basing power on service and regarding all political 

powers as duties, 7.e., as trusts, it treated these powers, suf- 
_ frage and eligibility to office alike, as human rights based upon 
interests. The only logical outcome of this view, he declared, 
was universal suffrage — not manhood suffrage merely, but 
a vote, personally or through a guardian, for every man, 
woman and child in the nation, not excluding lunatics, pau- 
pers and criminals, since all of these had interests to pro- 
tect. The interests of the inmates of asylums, workhouses 
and prisons, he dryly added, were of all the most urgent, be- 
cause most directly affected by government. Gneist found 
the fullest and most lucid expression of the new political 
philosophy in Mill’s Representative Government, and in 
criticising this book he clearly formulated his own antagonis- 
tic views.**° He maintained that the only logical outcome 
of Mill’s theories was the Napoleonic constitution, and that 
this was “ the universal constitutional idea of the new in- 
dustrial society.” *** 

Gneist was not the only person of his generation who 
had found the chief defect of continental constitutionalism 
in the centralization of governmental power. De Tocqueville 
had expressed similar views and had urged decentralization, 
and so had other writers in other countries. But Gneist 
was the first to set forth the true character of English self- 
government and to show clearly what it was not: not local 
autonomy, which dissolves the state into a multitude of petty 
republics; not a descending series of provincial, departmental 
and local councils, equally incapable of conducting admin- 
istration and of exercising any real control over the current 
administration conducted by professional officials; not man- 
orial jurisdiction, associated with landed property. All these 
arrangements had been called self-government, and their 
respective advocates had imagined that their systems were 


280 First in Reprdsentativsystem, pp. 160, 161; more fully in Ver- 
waltung, Justiz, etc., pp. 52-60. 
281 Jbid., p. 60. 


240 Four German Jurists 


at least akin to the English. Gneist’s writings, Bornhak *** 
tells us, put a stop to all these partisan appeals to English 
precedents. 


XI 


What Gneist really thought of parliamentary government 
as developed in England, whether he considered it on the 
whole a good thing or a bad thing, is to be read rather be- 
tween the lines of his writings than in the form of direct 
statement.*** He attributed the establishment of parliamen- 
tary government to the folly of the Stuarts, and he would 
probably have assented to the statement that, if England had 
possessed, during the last three centuries, a dynasty as 
capable and intelligent as the Hohenzollerns, parliamen- 
tary government would have been neither possible nor de- 
sirable. 

That he did not desire the establishment of parliamentary 
government in Prussia or in Germany until a thorough system 
of self-government in the localities should have trained 
the people for public life, is made clear in all his writings. 
His experience in public life could have led him to no other 
view. Germany has not yet developed the first requisite for 
party government; it has no parties. It has only fractions, 
which often dissolve and recombine like the color in a 
kaleidoscope. The instinct for party organization and the 
recognition of the necessity of party discipline are almost 
wholly wanting.*** He would doubtless have conceded that 
the organization of strong parties, capable of assuming rule, 
could not be expected until there should be a prospect that, 
if organized, they would have a chance to rule; but he would 


282° LOC. Gt, PPeAVyy wen 
283 A fair statement of the advantages and disadvantages of parliamen- 
tary government is to be found in Gneist’s article in Holtzendorf, pp. 1454— 


284 Of this defect Gneist was at times irritably conscious. During the 
passage through the Imperial Diet of the protective Tariff Bill of 1879, I 
asked him one evening how his party had voted that afternoon on the second 
reading of the measure. “Fifty-one for and fifty against,” he replied, and 
added: “ That is a pretty party. The hundred might as well have hired cabs 
and driven about the Thiergarten.” 


Four German Jurists 241 


still have insisted that the parties would be social, rather than 
political, until self-government in the localities had done 
its perfect work. 

Gneist’s assertion that parliamentary government was 
impracticable without self-government in the localities did 
not, however, by any means imply that he regarded parlia- 
mentary government as even a distant goal of Liberal effort 
in his own country.*° Many of his utterances indicate, on 
the contrary, that he assigned to monarchy permanent polit- 
ical functions. Like Lorenz Stein, he pronounced heredi- 
tary monarchy the purest expression of the state, because it 
raises the state above society. History, in his interpretation, 
shows that the bases of free states have always been laid 
by lawgivers invested with dictatorial or monarchic powers. 
It was so in the ancient world; it was so again in medieval 
Europe. It by no means follows, however, that after the 
bases of the state have been established monarchy becomes 
superfluous. Great changes in the distribution of wealth 
and the resultant rearrangement of the social classes will 
always necessitate the readjustment of political and social re- 
lations, the ‘‘ recombination of state and society.” An elec- 
tive assembly cannot do this work, for elective assemblies, 
particularly at such periods, represent interests; and the | 
state cannot be built on a basis of interests: it must always 
be reconstructed, as it was originally constructed, on the 
basis of duties. The Norman monarchy laid the founda- 
tions of the English free state; the Parliaments of the nine- 
teenth century undermined them. Prussian monarchy not 
only built the old Prussian state, but it also laid, in 1808, the 
bases for the new Prussia and the new Germany. It was 
to the Prussian monarchy that Gneist looked for the realiza- 
tion of his program of political reforms, because this pro- 
gram required the imposition of duties from which society 
would shrink; and it was the Prussian monarchy, as he after- 

285 He went furthest in his Stdnde und Wahlsystem, p. 271, claiming 
that the reformed Prussia possesses the firm bases ‘on which a House of 


Commons may develop into the highest council of the crown with a position 
of increasing power.” This, however, does not mean parliamentary supremacy. 


242 Four German Jurists 


wards declared, that had carried these reforms to a success- 
fulissuess 

One reason why Gneist had comparatively little to say 
regarding the question here raised —the question which 
exists in republics, as well as in monarchies, and which we 
usually describe to-day as that of the relative superiority of 
presidential, as compared with cabinet, government — was 
doubtless that many of his friends in the Liberal party in 
fact looked forward (as Bismarck always said they did) 
to the establishment of parliamentary control over the crown, 
not merely in legislation and in finance but in every branch 
of administration, and that Gneist, as a good politician, de- 
sired to live, so far as possible, in harmony with his party 
associates. As it was, he was quite at odds with most of 
them concerning the financial powers of Parliament and the 
doctrine of ministerial responsibility. To them the power 
of the legislature to vote appropriations seemed a power to 
prevent the government from spending a penny of revenue 
without the authorization of the legislature and a means 
of making the ministers responsible to the legislature. 
Gneist showed, again and again, that the English House 
of Commons, in making appropriations, had never attempted 
to deal with anything more than a certain “ mobile part” 
of the governmental expenditures; that expenditures au- 
thorized by law must be made, according to the English 
theory, until the law was changed; and that the refusal of 
subsidies to a medieval king was a very different thing 
from an attempt to bring all the necessary work of the 
modern state to a standstill.*** He drew a sharp distinc- 
tion between the political responsibility of ministers to the 
legislature, which meant that system of parliamentary 
government for which neither Germany nor Prussia was pre- 
pared, and their legal responsibility, which meant that they 

286 Cf, History of the English Constitution, vol. i, p.16; Reprasentativ- 
system, p. 158; “ Eigenart des preussischen Staats, passim; ” Rechtsstaat, 


pp. 278, 279; Holtzendorff, p. 1465. 
287 Budget und Gesetz, 1867; Gesetz und Budget, 1879; Rechtstaat, p. 343. 


Four German Jurists 243 


ought to be amenable to legal procedure in case they should 
violate the law. 

The chief reason, however, for Gneist’s relative silence 
regarding the abstract desirability of parliamentary govern- 
ment was, doubtless, that constitutional problems were to him 
of less interest than administrative problems. To him, as 
to many jurists, political liberty seemed less important than 
legal liberty, z.e., the protection of the personal and property 
rights of the individual. These forms of liberty, of course, 
are not only distinct in theory, they are also separable in 
fact. Legal liberty may be effectively protected) under 
governments of the absolute type, as was the case under 
the Antonines in the second century and under the Hohen- 
zollerns in the eighteenth; it may, on the other hand, be 
trampled under foot by governments as popular in their 
constitution as was that of the French Convention. Legal 
liberty, as Gneist was never weary of insisting, is a thing 
that depends mainly on the kind and degree of control to 
which the administration is subjected, because the chief 
points of collision between government and private inter- 
ests occur in the field of administration. The control must 

in first instance be legal, 7.e., the law must declare what the 
officers of administration may do and what they may not 
do. It must in second instance be judicial. The most 
admirably devised bills of rights will be vain things, and 
even detailed legal provisions intended to carry out the prin- 
_ciples formulated in such bills of rights will be of uncertain 
efficacy, if the interpretation and enforcement of the law is 
left to administrative officers acting simply as administra- 
tive officers. The interpretation and enforcement of the 
law must be intrusted to authorities whose position and ten- 
ure make them independent of the administration and whose 
forms of procedure and decision are judicial. The ordinary 
courts, if properly constituted, are of course such authorities; 
but they are not the only possible authorities of the kind. 
Officers of the administration who are intrusted with judicial 


244 Four German Jurists 


functions, whose procedure is judicial in its form and who 
enjoy the same independence against the central administra- 
tion that is conferred upon the ordinary courts, become 
judicial officers, and permanent boards composed of such 
officers, become courts. To what extent the interpretation 
of the law shall be left with the ordinary courts, to what 
extent it shall be intrusted to administrative courts — in 
other words, just how the judicial control of the administra- 
tion shall be divided between these two classes of courts — 
is a secondary question, a question in the main of expedi- 
ency.”** The chief thing is that the courts, whether ordinary 
or administrative, shall be really independent, and that they 
shall be intrusted with the powers necessary to protect in- 
dividual rights against administrative power. Any state 
in which the rights of the individual are thus safeguarded 
against the administration by proper laws, interpreted and 
gee by cae judicial authorities, is what Gneist 
calls a ‘‘ jural state.” 

To us, on this side of the ocean, it seems that we have gone 
a step further. The jural state protects the individual 
against the misuse of administrative power; our constitu- 
tional state (a term to which we have given an entirely new — 
meaning) seeks to protect the individual against the misuse 
of legislative power. Gneist, however, thought that this 
devise of ours — safeguarding private rights by constitu- 
tional provisions and intrusting the enforcement of these 
provisions to the courts — was indeed a fair substitute for 
the conservative influences of monarchy and aristocracy, 
but that the inflexibility of our constitutional law unduly 
hampered legislation.** 

The state that is not jural—the state in which, on the 
contrary, the protection of private rights is subordinated 
to considerations of public policy —is termed by Gneist 
‘“welfare-state.” Of this sort of state he found a typical 


288 Cf. Goodnow, “The Executive and the Courts,” Political Science 
Quarterly, vol. i, p. 533. 
289 Soll der Richter, etc., p. 23. 


Four German Jurists 245 


example in France. The French failure to realize the jural 
state was ascribed by him in part to the national temper. 
When a great public end is to be gained, it is hard for a 
Frenchman to understand why such little things as private 
rights should be regarded, or why the courts should be per- 
mitted to impede the realization of the general will and the 
promotion of the general welfare. In this they are true to 
the Latin tradition which has always subjected iurisdictio 
to imperium.”°° ‘The French point of view, however, is not 
peculiar to France; it is the natural social point of view. 
It is shared by every society that has not been educated 
by personal service to political consciousness. The French 
temper is largely ascribable to the defective character of 
French institutions, and the defects in these institutions are 
explained by the history of the French state. The French 
monarchy did not harness the ruling classes of the feudal 
period into the service of the state. It did not impose 
upon them governmental duties, but simply thrust them 
aside or bought them off with privileges; and it secured 
the performance of the necessary functions of the state by 
hiring soldiers, judges and administrators. In restoring 
and perfecting the administrative system of the old mon- 
archy, Napoleon acted completely in accordance with the 
will of the sovereign people, who knew no other mode of 
governing. °* When, in the nineteenth century, the attempt 
was made to combine parliamentary government with this 
bureaucratic administration, private rights were exposed to 
greater perils than had menaced them under the old mon- 
archy or under the dictatorship of Napoleon. The power 
of the centralized administration began to be used, not simply 
to carry out the purposes of the state, but to further the in- 
terests of parties, to reward the faithful, to punish the dis- 
affected and, above all, to carry elections. For the protection 
of private rights France possessed, indeed, a highly developed 
system of courts. Even under the Second Empire, the or- 


290 Verwaltung, Justiz, etc., p. 180. 
291 Verwaltung, Justiz, etc., p. 181. 


246 Four German Jurists 


dinary courts were apparently independent of the admin- 
istration, since the tenure and pay of the judges were secured 
by law; but the administration placed these judges where 
it pleased, transferred them, not simply from one court to 
another, but also from one section or chamber to another, 
and thus controlled the composition of the chambers by 
which special classes of cases were tried. In criminal pro- 
cedure, moreover, where conflicts between private rights 
and public or party interests occur more frequently than in 
civil procedure, prosecution was in the hands of officials 
appointed and removed by the government; the prelimin- 
ary investigation was conducted by a judge designated by 
the government; the bench that tried the accused was a 
bench constructed by the government, and the jury was a 
‘““committee of persons enjoying the confidence of the pre- 
fect.” Certain precedents and considerations of decency 
restrained the government in the use of its power over the 
judiciary, but it was precisely when the abuse of this power 
was most dangerous that these safeguards became ineffec- 
tive: 

The French administrative courts are admirably devised 
“to secure continuity of practice in the administrative field.” 
They afford also a high degree of protection to. property 
rights. In the Council of State, which is the highest admin- 
istrative tribunal, the forms of judicial determination are 
scrupulously observed. The personnel, however, of the ad- 
ministrative courts and the composition of the section of the 
Council of State by which controversies are decided are con- 
trolled by the ministry. In opposition to England practice, 
it is, moreover, the administration that raises all questions of 
competence between the civil and the administrative courts: 
cases are not removed from the administrative jurisdiction 


292 Verwaltung, Justiz, etc., pp. 181, 182. Gneist’s criticism of the 
French judicial system was well founded for the Second Empire; but the 
conditions were not so bad between 1820. and 1852, and in the present 
republic the courts and the juries have again been made independent of the 
administration. Cf. Flourens, Organisation judiciare et administrative de la 
France, 1814-1875. 


Four German Jurists 247 


to the ordinary courts, but vice versa. Jurisdiction in ques- 
tions of public law is almost wholly withdrawn from the 
ordinary courts and vested in the administrative courts. 
All this is in accordance with the principle of the separation 
of powers and secures “‘ the independence of the executive 
branch.” But the independence thus secured is practically 
supremacy.”’* The chief defect, however, in the French 
polity, as Gneist always insisted, is the lack, in the local- 
ities, of that self-government which not only makes internal 
administration independent of changing majorities and min- 
istries but also trains the people to the right feeling for the 
state.°°* 

Gneist’s categories of the jural and the welfare state may 
be criticised on the ground that the distinction which they 
represent is not absolute, but relative. Every civilized state 
is more or less jural, and every civilized state is more or less 
a welfare state: the difference between the two classes con- 
sists in the predominance of one or the other tendency. 
In his distinction there is, nevertheless, an element of uni- 
versal and permanent truth. If we substitute for his jural 
state our constitutional state, which to us is simply his jural 
state raised to a higher power, his welfare state remains the 
expression of the opposite tendency; and the chief problem 
which the rule of our insular territories has forced upon us 
may be expressed in the terms of this antithesis. We are 
face to face with the question whether we, like the Romans, 
shall subordinate law-finding to empire. Fortunately for us, 
the decision, which is not yet rendered, rests not with the 
administration nor with Congress, but in the first instance 
with our highest court of justice and in the second instance 
with a people who, if Gneist’s judgment was not mistaken, 
possess in a fair degree the jural consciousness. 

293 Verwaltung, Justiz, etc., pp. 182-184. 

294 Cf. Rechtsstaat, pp. 158-190. The decentralizing movement which 
was under way when Gneist published the second edition of the Rechtsstaat, 
and which has since been carried further, has not established what Gneist 
called self-government. The existing French system resembles that newer 


system of English local government which he regarded as an abandonment 
of self-government. 


248 Four German Jurists 


XII 


In 1859 Gneist reéntered active political life as a member 
of the Prussian Chamber of Deputies, and in 1867 he be- 
came a member of the newly created Imperial Diet also. 
Reélected with unfailing regularity for many years to both 
bodies, he was henceforth in a position to urge more effec- 
tively the reforms he had at heart. During the first seven 
years of his parliamentary life, however, the Prussian govern- 
ment and the deputies were not in such harmony as to make 
reform legislation possible. It was a time of internal con- 
flict, during which the king reorganized the Prussian army 
in defiance of a hostile majority in the Chamber, and his 
ministry collected and disbursed the revenues of the state 
without parliamentary authorization. It was also a time 
of external conflict, during which the German question was 
solved by the expulsion of Austria from the German con- 
federation and the establishment of a new federal state 
under Prussian hegemony. In the internal conflict Gneist 
took an active part, opposing as resolutely as any of his 
Liberal associates the unconstitutional acts of the ministry, 
but filing from time to time separate dissenting opinions, in 
the form of speeches and pamphlets, to explain the grounds 
of his opposition. He did not fully share, as we have seen, 
the prevailing Liberal opinions regarding the financial powers 
of a parliamentary body; and he preferred to base his 
opposition to the ministry on the ground that in enlarging 
the army without the consent of the Chamber they were 
modifying by ordinance the conditions established by law. 
When Bismarck solved the German question, —a result at 
which Gneist was as much surprised as any of his Liberal 
associates,— Gneist went with the more moderate portion 
of his party into the new National Liberal party, which 
accepted Bismarck’s generous terms of peace and acted in 
general concert with him for the next twelve years. Much 
as he came to admire the great chancellor, Gneist could 
never quite forget the bitterness of the years of conflict: 


Four German Jurists 249 


and he always maintained —I have heard him assert it 
in the lecture room—that Bismarck solved the German 
question only because, in his contest with the Prussian 
Chamber, he had been forced into an impasse from which 
nothing but a successful foreign war could extricate him. 
With the termination of the conflict and the establishment 
of harmonious relations between the Liberals and the 
government began a period of great legislative activity, 
in which Gneist took an important and, in some instances, a 
decisive part. His chief aim, of course, was the reform 
of Prussian local government. This problem was simplified, 
in his view, by the fact that the leading principles of self- 
government, as he understood them, had already been in- 
troduced into the government of the Prussian cities by the 
famous ordinance of 1808. Its author, Baron Stein, was 
himself familiar with English local government and had 
appreciated its essential features; and in the ordinance of 
1808 he had given the cities an independent administration 
based on the compulsory and unpaid service of non-pro- 
fessional officials. The problem, in Gneist’s opinion, was, 
therefore, to extend Stein’s system of city government, with 
such modifications as might be required, to the open country. 
At the outset, however, hardly any one else viewed the mat- 
ter in this way. Every one was in favor of self-govern- 
ment in the localities, but there were great differences of 
opinion as to the meaning to be attached to the phrase. 
The Conservative party demanded the maintenance and 
extension of the manorial police system, which still sur- 
vived in the eastern provinces. The Liberals generally de- 
sired the maintenance of professional service under a pop- 
ular control, to be exercised by elected councils of the French 
type. The Prussian bureaucrats themselves desired to go 
on governing with much less interference on the part of the 
ministry. Gneist, however, found as early as 1868 a sup- 
porter whose single voice was easily worth the opinion of 
any one of these groups — the Prussian minister president. 
A memorial drafted by Gneist in the summer of that year 


250 Four German Jurists 


was presented by Bismarck to the ministry; *° and although 
at the outset Gneist’s plans found no other supporter, a 
bill abolishing manorial jurisdiction and creating a system 
of what we should call county and local government was 
gradually worked out, and this bill, after three years of 
discussion, became law in 1872.°°° It was first put into 
force in the eastern provinces of Prussia and then gradually 
extended with modifications to other provinces. Further 
laws passed in 1875 and 1876 reorganized the provincial ad- 
ministration on similar lines. Except that election was 
made to play a larger part than Gneist desired in the 
creation of the local and provincial authorities, and that the 
system was made more complex ‘than he wished, these laws 
substantially realized his chief aims. They certainly rep- 
resent a serious attempt to draw the well-to-do classes into 
the service of the state and to give them, through compul- 
sory service, that political training which Gneist believed 
could be obtained in no other way. ‘They represent also 
a serious attempt to make local government independent of 
central bureaucratic control.**’ 

These laws provided at the same time for a reorganiza- 
tion and reform of administrative jurisdiction substantially 
in accordance with Gneist’s ideas. As late as the begin- 
ning of the nineteenth century the Prussian administrative 
system was organized in a manner that gave very substantial 
protection to private rights; but the Stein-Hardenberg re- 
forms and later laws based on French parliamentary theories 
so increased the power of the Prussian ministry as greatly 
to weaken the independence of the lower administrative in- 
stances; and, in consequence of the abolition of the Council 
of State, the final interpretation of law in administrative 


295 Rechtsstaat, p 359. The substance of this memorial was published 
by Gneist in 1870, under the title, Die preussische Kreisordnung. Cf. Gneist, 
“Les Reformes Administratives en Prusse,” in the Revue Générale de Droit, 
etc. (Bucharest), vol i, p. 251. For the history of the reform see also his 
Verwaltungsreform in Preussen (1880) and Stdnde und Wahlsystem, pp. 208— 
215. 296 Kreisordnung, von Dec. 13, 1872. 

297 For details of the reform, cf. Goodnow, “Local Government in 
Prussia,” Political Science Quarterly, vol. iv, p. 648; vol. v, p. 124. 


Four German Jurists 251 


questions was placed wholly in the hands of the ministers. 
In connection with the reform of local and provincial govern- 
ment, from 1872 to 1876, administrative courts were or- 
ganized in which the non-professional elements, the ‘‘ honor- 
ary Officers,’ have the controlling voice; and for final 
decision of all cases involving the interpretation of public 
law, and not falling within the competence of the ordinary 
courts, a superior administrative court was established at 
Berlin, with the same guaranties of independence and im- 
partiality that exist in the case of the ordinary courts. Of 
this new court Gneist was very properly made a member. 
To the control of the administration by law, Gneist re- 
garded it as essential that the ordinary courts should have 
power to disregard an ordinance which trenched upon the 
field of law; and it was, in his opinion, one of the chief de- 
fects of the Prussian constitution that, in accordance with 
the Latin theory and in imitation of constitutions of the 
French type, it withheld this power from the judiciary. 
This mistake, however, was not repeated in the imperial 
constitution; and in Prussia the attribution of this power 
to the superior administrative court substantially remedied 
the evil, since the decision was taken out of the hands of 
the ministry and intrusted to a judicial body. It was es- 
sential, again, in Gneist’s opinion, to the legal control of 
the administration that officials by whose acts or laches 
private persons had suffered in person or in purse should 
be subject to the ordinary processes of law — not, of course, 
on account of injudicious exercise of their discretionary 
powers, but for acts beyond their competence or for neglect 
of their legal duties. In Prussia and in other German states, 
the liability of officials to civil suits and to criminal prosecu- 
tions had been unduly limited by laws passed during the 
first six decades of the nineteenth century. By imperial 
legislation, adopted in 1877, all these limitations are an- 
nulled or rendered innocuous.*** At the same time, the 
administrative ‘‘ monopoly of criminal prosecution,” which 


298 Kinfiihrungsgesetz zum Gerichtsverfassungsgesetze, § 11. 


252 Four German Jurists 


Gneist had frequently reprehended, was modified by the 
imperial code of criminal procedure, which provides that, 
if the public prosecutor refuses to act, the injured party 
may apply to the highest state court or, in cases falling within 
the competence of the Imperial Court, to that tribunal, and 
that the court may order the prosecution of the alleged of- 
fender.*”” 

It avails little to subject the administration by law to 
judicial control, if the judiciary is in law or in fact con- 
trolled by the administration. In Prussia, as Gneist re- 
peatedly pointed out, the judiciary had been subjected, since 
1851, to a ministerial control that really destroyed its in- 
dependence. Not only had the Napoleonic device been in- 
troduced, by which the minister of justice placed judges 
where he pleased and formed the chambers into which the 
higher courts were divided, but the judges had also (again 
in imitation of the French practice) been made subject to 
disciplinary proceedings conducted by the administration; 
and the powers thus conferred upon the ministry had been 
employed, during the Conservative reaction and during the 
period of conflict, with a disregard of decency unexampled 
in France.*°° The return of such conditions was made 
impossible, and the independence of the judiciary was 
secured against all assaults, by the imperial law of judicial 
organization passed in 1877. In addition to the ordinary 
guaranties of judicial tenure and salary, it is provided in 
this law that judges may not even be retired on partial or 
full salary except under the conditions established by law 
or with their own consent, and that without their own con- 
sent they may not be transferred from one post to another, 
even when the transfer is a promotion. It is further pro- 
vided that, while the number of chambers or senates in the 
state courts and in the Imperial Court is to be determined 
by the respective ministers of justice and by the impe- 
rial chancellor, the composition of these divisions and the 


299 Strafprocessordnung, §§ 169-173. 
800 Verwaltung, Justiz, etc., pp. 184 et seq.; Freie Advocatur, pp. 29-49. 


Four German Jurists as 


distribution of business among them shall be determined 
by the courts themselves.*” 

Gneist had always maintained that by instinct and tem- 
per his countrymen were as well fitted as the English for 
self-government and the jural state. He had repeatedly 
demonstrated that the institutions of German absolute mon- 
archy had never been as purely bureaucratic as those of 
France and that the idea of subjecting administration to law 
had never been permanently obscured. With the reforms 
above indicated, he felt that the chief bases of the jural 
state were securely laid. 

There were, however, two things that still troubled him 
— two places in which the jural state was incomplete, both 
in Prussia and in the empire. Neither the ministers nor the 
army were subjected to due legal control. The ministers 
of the Prussian crown and the chancellor of the empire 
are declared, by express constitutional provisions, to be re- 
sponsible; but neither in the Prussian nor in the imperial 
constitution, nor in any law, is it indicated to whom they 
are responsible or what their responsibility really signifies. 
Bismarck always declared that the Prussian ministers were 
responsible to the king, and the imperial chancellor to the 
emperor; and if the word be taken to mean politically re- 
sponsible, his statement is true. Gneist took the word to 
mean legally responsible; and argued that if a minister or 
the chancellor violated the law, he ought to be impeached 
and tried. In the absence, however, of any law determining 
who may impeach and what tribunal shall try, he con- 
ceded that nothing could be done.** There the matter still 
rests alike in Prussia and in the empire: the constitutional 
provision, in each case, remains what Gneist called it — 
a lex imperfecta. 


301 Gerichtsverfassungsgesetz, §§ 8, 61-68, 133. 

302 In Verwaltung, Justiz, etc., p. 219, he expressed the opinion de lege 
ferenda for Prussia that the Chamber of Deputies should be intrusted with 
the impeachment, but that a special tribunal should be established for the 
trial, since the Herrenhaus was not the right sort of upper house for such 
cases. 


254 Four German Jurists 


The second open place in the German jural state is what 
Gneist described as ‘“‘ the practical exemption of the mili- 
tary authorities from legal control” and “ the consequences 
drawn from the fiction of ‘a military class.’” ‘“ Condi- 
tions,” he pleaded, “‘ should not persist in which the life, 
health, freedom and property of the people are placed in 
the hands of the military authorities without legal protection 
or judicial control.” The idea should be abandoned that 
the army officers form a separate class, and their special 
forum should be abolished, at least in the case of ordinary 
crimes. Courts of honor he pronounced unnecessary; the 
ordinary military courts can dismiss an officer for conduct 
unbecoming a gentleman. ‘‘ The English aristocracy is 
certainly not insensible to the real point of honor.” °°’ It 
is not likely that Gneist expected to witness these reforms; 
but they remain, for all that, permanent demands of the 
German Liberal program, and they are sure to be realized 
in time. 


Law books, like all other technical works, become anti- 
quated. Of their contents so much as is permanently true 
reappears, often without acknowledgment or even recollec- 
tion of its first presentation, in a series of sequent treatises, 
each of which, in its time, is up to date, and each of which, 
after its time, passes into oblivion. This fate will probably 
be shared by Gneist’s great work on the English constitution. 

The literature of reform is even more ephemeral. The 
more successful it is, the sooner it ceases to find readers. 
The names, indeed, of successful advocates of important 
reforms are often preserved in history; but even in this 
matter there is an element of luck. Gneist’s part in the 
work of establishing self-government in Prussia is the more 
likely to be under-estimated because the reforms of 1872— 
76 will be viewed, and rightly viewed, as the completion 
of the reform of 1808. Baron Stein will receive, in history, 


803 Verwaltung, Justiz, etc., pp. 258 et seq.; Verwaltungsrecht, pp. 571- 
576. 


Four German Jurists 255 


the credit of initiating the movement, Prince Bismarck that 
of completing it. In history the eminent results in any 
movement stand out with increasing clearness as they re- 
cede further into the past; but as they recede, they also 
draw nearer to each other, and the intervals shrink until 
sixty or seventy years in which nothing of consequence oc- 
curred seem as a day. It will therefore hardly be stated or 
even remembered by future historians that the origin and 
the meaning of Stein’s reforms had to a great extent passed 
out of the consciousness of Gneist’s generation; that in the 
middle of the nineteenth century the bases of municipal 
self-government which Stein had laid had been seriously 
weakened by unwise legislation; or that, for many years, 
Gneist was the only prominent advocate of the principles c on 
which the reforms of 1808 were based. 

Gneist’s best title to remembrance will probably be found 
in his political doctrines. Had he possessed, as a writer, that 
indefinable quality which we call style, —a quality which 
often gives a long lease of life to a book that contains no 
ideas, and which causes a book that does contain ideas to 
be read for centuries, — he might have written a Jural State 
or some such book which would have made him one of the 
immortals. He would then not merely have been remem- 
bered as one of the most prominent representatives of the 
nineteenth century reaction against the exaggerated indi- 
vidualism of the time: he would have had a place forever 
among the great political teachers: for no man ever saw more 
clearly, felt more strongly or declared more insistently than 
he that states rest not on rights, but on duties, and that 
the citizen is not born, but trained; and these are permanent 
and fundamental truths that need to be reiterated to every 
generation. 


V 
ROMAN. LAW IN AMERICAN LAW SCHOOLS * 


SHOULD the Roman law be included in an American scheme 
of legal education? If so, should it be treated as an optional, 
an elective, or a required study? And if required, how much 
should be required? ‘The answer to the third question may 
be postponed until the first two questions are answered. 
These every man will answer according to the theory which 
he holds, consciously or unconsciously, regarding the pur- 
pose of legal education. 


I 


One tenable theory of the function of a law school —a 
theory which seems to be held by the majority of American 
law teachers—is that such a school exists simply for the 
purpose of training lawyers. By lawyers the adherents of 
this view mean practitioners in the field of private law, men 
who are to give advice upon legal questions that affect the 
persons or the pockets of their clients and who are to fight 
their clients’ battles, if battles there must be, in the courts 
of justice. The education that is needed is partly informa- 
tional. The graduate of a law school, the candidate for ad- 
mission to the bar, cannot be expected to know all the rules 
obtaining in every department of private law, but he should 
know the leading and well-settled rules in each department, 
and he should know where to go for information upon mi- 
nuter matters. A more important part of his training is 
that which deals with method. He has. to learn how to 
handle the original matter of the law. He must learn the 
art of construing statutes, and the degree of possible differ- 
ence between a broad and a narrow construction. He must 
learn the deeper mysteries of interpreting decisions, so that 


1 Reprinted from the American Law Register and Review, vol. 45, no. 3, 
March, 1897, pp. 175-186. 


Roman Law in American Law Schools 2 57 


he may marshal precedents skilfully upon the side which 
he represents and may destroy by “distinction ” the prece- 
dents similarly marshalled by his opponent. 

Given this theory of a legal education, it is easy to show 
that knowledge of the Roman law may be useful, but its 
study can hardly be shown to be needful. Its purely in- 
formational value is not great. In most portions of the 
Anglo-American private law there is more or less Roman 
law, ancient or medieval, civil or canon. In some portions 
there is a great deal of Roman law. It is interesting to know 
whence the rules of the English law have been derived, but 
such knowledge is by no means necessary. Where the exact 
scope and significance of the English rule is disputed, it may 
be of practical use to show how the rule was interpreted by 
the great Roman jurists or by the medieval civilians or 
canonists. Once in a while a case may be won in this way, 
but once in a while a case may be won by a knowledge of 
chemistry or of mechanics. These are, in practice, casus 
rariores. It may be urged, and with truth, that the process 
of drawing new rules, where new rules are needed, from the 
apparently inexhaustible storehouse of Roman jurisprudence 
has by no means ceased. Even within the last hundred years 
it has been discovered by English courts that old debts > 
can be extinguished by substituting new ones: Tatlock v. 
Harris, 3 Durnford and East, T. R. 174; and that where ac- 
tion is brought against a surety he can set-off a sum owed 
by the plaintiff not to himself, the surety, but to his princi- 
pal, the original debtor: Bechervaise v. Lewis, 7 C. P. 372; 
and in each case the decision was drawn directly from the 
Roman law. These, however, are now casus rarissimi. As 
the English law has grown more complete, the tendency 
to borrow rules from the Roman law has steadily diminished, 
and the practice is more likely to become extinct than to 
increase. 

In cases involving conflicts of law the informational value 
of the Roman law is more considerable. With the increasing 
movements of persons and property across national frontiers, 


258 Roman Law in American Law Schools 


and with the rapid and unprecedented development of inter- 
national commerce, the cases have greatly multiplied in 
which foreign law —really foreign law, I- mean, not the 
law of a sister state — determines the decision of the Ameri- 
can courts. To the lawyer who has no acquaintance with 
Roman law, the legal vocabulary of continental Europe and 
Latin-America is a stumbing-block and the text of their laws 
isasnare. This practical problem, however, is apparently to 
be solved by a further specialization of law business. A few 
lawyers will devote themselves to the study of foreign law, 
and to these the others will turn for help when help is needed. 
It may be urged that these specialists should have a chance 
to prepare themselves for their work in our law schools, and 
this may be regarded as a valid argument for introducing 
courses in Roman law, at least in the more important law 
schools of the East. This argument, however, calls for 
nothing more than elective courses. It does not justify the 
introduction of Roman law as a required study. It is no 
more needful to make every graduate an expert in foreign 
law than to make every graduate an expert in patent law. 
And if elective courses are introduced for the benefit of the 
few students who may wish to make a specialty of foreign 
law, more stress should be laid on the modified Roman law 
of modern Europe than upon the law of Justinian’s days. 

A stronger plea may perhaps be made for the study of 
Roman jurisprudence as a part of the law student’s training 
in method. In the lax or rigid construction of statutes, and 
in the determination of the exact value of previous rulings 
as precedents, the Romans were assuredly not inferior to 
the acutest of the moderns. They handled statutes in par- 
ticular with more freedom than do our lawyers — with some- 
what of the same freedom with which our greatest lawyers 
have handled our federal and state constitutions. But these 
arts can also be learned from English and American cases; 
and from the point of view of the intending practitioner, 
they can best be learned by studying cases in which are set 
forth the arguments of counsel. For this element in legal 


Roman Law in American Law Schools 259 


training the Roman law offers no exact equivalent. The 
greatest jurists of the Empire, whose responses and opinions 
form the bulk of the Digest, had been drawn into the service 
of the state, and their responses are not briefs, but decisions. 
Dissenting opinions have in some cases been preserved, with 
reasons for the dissent, but not arguments of counsel. In 
the accepted opinions and in those which were not accepted, 
the controlling influence was, of course, the interest of so- 
ciety at large, and not the advantage of any individual; and 
in so far the Digest furnishes better training for a judge than 
for a practitioner. ! 

It may, of course, be said that our law schools in educat- 
ing practitioners educate some who will be judges; and if it 
be admitted that a broader training, or a training in any way 
different from that required by a barrister, is needed by a 
judge, then it must be admitted that the theory of legal edu- 
cation upon which our discussion has thus far been based, is 
an imperfect theory even from the practical point of view. 
But the advocates of the technical, or trade-school theory, do 
not concede the necessity of a different training for the judi- 
cial office. They take things as they are, and base their 
theory upon the established Anglo-American custom. It has 
long been usual, both in England and in America, to take the 
judges from the bar, and therefore the law school may be con- 
tent to train good barristers. If special qualifications are 
needed in the judicial office, they presumably come with the 
ermine. All this is thoroughly Anglo-Saxon, and in accord- 
ance with the old German saying: ‘‘To whom God gives an 
office, to him He gives understanding also.” 


1 


_ There is, however, a second possible view of the function 
of legal education, and of late years there are signs that this 
view is beginning to gain wider acceptance. The old and 
sound tradition is reviving that law is not a trade, but a pro- 
fession; and by a profession is meant not merely a trade that 


260 Roman Law in American Law Schools 


requires more than the average breadth of mental grasp and 
an uncommon subtlety of discrimination, but something else 
and something more. By a profession is meant a calling that 
subserves the interests of society as well as the interests of 
individuals, and that places, or should place, social wel- 
fare above individual advantage. There is no basis for the 
honor traditionally accorded to the professions as compared 
with the trades except the recognition and expectation of 
social service. There is no other reason for the endowment 
of professional schools, or for the maintenance of professional 
schools by an endowed university. If society pays part of 
the cost of a man’s education, it is because it expects to re- 
cover its outlay through that man’s services. What the 
services are which society expects from its lawyers, what 
the duties are which it imposes, is clear enough. The legal 
profession is custodian of the most important element of so- 
cial life — the body of rules which are necessary to the exist- 
ence and progress of society, and to which, accordingly, 
society constrains obedience through the strong arm of politi- 
cal power. Nor is our profession simply custodian of the 
law which society has created; it shapes the new law which 
the constantly changing needs of social life require. ‘This 
great service, and the duties it entails, cannot be thrown 
off upon the shoulders of the judges and the legislators. 
Apart from the fact that the majority of our legislators and 
all of our higher judges come from the bar, it is impossible 
that these should do their work in the best way without the 
sympathy and support of the bar. 

From this point of view, the problem of legal education is 
far less simple than it appears to the advocates of a purely 
technical training. Private law— the law of family and of 
property — cannot be divorced from public law. It can be 
thoroughly comprehended only in its relation to public law. 
This relation is not one of independent co-existence, but of 
organic interdependence. Each supplements and modifies 
the other. Hence the necessity of introducing into the cur- 
riculum of our law schools far more international, constitu- 


Roman Law in American Law Schools 261 


tional and administrative law than has heretofore found place 
there. Hence the necessity of giving to constitutional law, 
as taught in our schools, a different and a wider meaning. 
Constitutional law should not be taken to signify merely the 
protection of individuals and their property against govern- 
mental encroachment; it should be taken in its legitimate 
sense, as including the organization of our entire political 
system. 

Nor can law be really understood by studying it simply as 
it is to-day. We really comprehend things only when we 
know how they have come into existence and how they have 
grown to their present form. To the lawyer, as a profes- 
sional man, some knowledge of the history of our law is ab- 
solutely essential. It is one of the great merits of the case 
system that it gives glimpses of the evolution of legal rules. 
But general courses in English legal history, which shall 
show the development not merely of this or that legal insti- 
tution but of the law as a whole, are greatly needed. 

Nor can the law be really understood, as it should be un- 
derstood by those who are its makers and its guardians, by 
studying law alone. It can be really understood only in its 
relation to ethics, politics and economics. Unless the law 
student has been thoroughly grounded in these subjects be- 
fore he begins his law studies — and how few of our Ameri- 
can law students are thus grounded! — these matters also 
must find some place in the scheme of legal education. 

_ At present it is only in a few of our larger universities that 
any attempt is made to meet these needs. At such universi- 
ties there have been established, side by side with the law 
schools, schools of political science or graduate courses in the 
political sciences; and courses in history, public law, eco- 
nomics, etc., have been thrown open to the law students, in 
some cases as optional courses only, in some cases and to 
some extent as elective courses leading to the law degree. 
This solution of the problem is inadequate. In all our law 
schools, even in those that are associated with our greatest 
universities, the traditions of the technical school are still 


262 Roman Law in American Law Schools 


dominant among the students themselves. To most of them 
law means private law; public law is politics. To most of 
them history, ethics and economics seem matters as remote 
from law as are geology, theology or belles-lettres. At the 
same time the work of the law schools has been growing more 
and more minute and intensive in the field of private law; 
and in spite of the extension of the law course from two years 
to three, the pace of the work has been quickened. Under 
the optional system, therefore, hardly any of the law stu- 
dents can make use of the new opportunities extended to 
them; and even under the elective system the number 
who strive to broaden their education is comparatively 
small. 

Judging from European tendencies, this method of dealing 
with the problem of professional education in law is proba- 
bly destined to prove a temporary and transitional method. 
On the continent of Europe public law has long constituted a 
required part of the legal education, and of recent years 
courses in economics are beginning to be required. 

But what of the Roman law? Are its claims stronger in 
the professional school than in the technical school? ‘They 
are certainly stronger, but not even from this point of view 
are they imperative. When the history of English law is 
studied, we find the influence of Roman law, civil and canon, 
increasing as we go backward. To the lawyer who studies 
English legal history as an investigator, with the intent of 
increasing our stock of knowledge, a considerable acquaint- 
ance with ancient and medieval Roman law is necessary. 
But to the lawyer who studies English legal history merely 
to gain a better comprehension of the existing Anglo-Ameri- 
can law, the Roman law, however useful, is not necessary. 
The same statement must be made as regards the study of 
public law, and as regards the study of economics and of 
ethics. To the historical investigator in these fields, some 
knowledge of Roman law is, I think, necessary. To the 
ordinary student it is of advantage, but it is not necessary. 
In public law, in economics, and in ethics, the elements 
derived from the Roman civilization have been so largely 


* 


Roman Law in American Law Schools 263 


assimilated and transmuted that the ordinary student can get 
the results of the historical process without going back to 
its beginnings. 

From the point of view of professional education, accord- 
ingly, the demand for elective courses in Roman law is 
stronger than from the point of view of technical education; 
but it is still a demand for elective courses only, and not for 
a required course. 


III 


A third view of law and of legal education — a view which 
all our teachers of law accept in theory, but which many of 
them disregard in practice — is that law is not a trade merely, 
nor a profession merely, but a science, and that legal educa- 
tion should be scientific. This view is not wholly incom- 
patible with the theory that law schools exist simply to 
produce practitioners in the field of private law, for the train- 
ing given in private law may be more or less scientific. 
Much less is this view incompatible with the theory that law 
is a profession, and that social duties of the greatest im- 
portance rest upon the bar. It has always been felt instinc- 
tively that the true professional spirit — the spirit of public 
service —is most fully developed among men who regard 
the subject-matter of their profession as a science; and it is 
the testimony of the world’s experience that such men serve 
society most gladly and most effectively in laboring for the 
advancement of their chosen sciences. From the scientific 
point of view, also, there is the strongest reason for includ- 
ing in the legal curriculum legal history, public law, eco- 
nomics, and ethics; for every true science studies and pre- 
sents its material in the light of its development and in its 
relations to allied sciences. 

But every true science employs a method of which the 
technical and professional schools make little use. This 
method is comparison. It is preéminently the scientific 
method; without the employment of the comparative method, 
no body of knowledge regarding the facts of the physical 
world or the facts of social life can take rank as a science. 


264 Roman Law in American Law Schools 


In considering law from the technical and professional 
points of view, we have considered it as a national system. 
We have considered Anglo-American law alone. But law, * 
though primarily a national product, is also a human product. 
Social organization is always fundamentally the same among 
peoples standing on the same plane of social evolution. 
Many of its basic facts are constant throughout the course 
of human history. Many of the problems with which Eng- 
lish and American lawyers have to deal are problems with 
which the Roman jurists dealt; all of them are problems with 
which the jurists of modern Europe are dealing. Nor is law 
human in this sense only —that the problems confronted 
and the conditions of their solution are everywhere similar 
— but also in the sense that its development has been human. 
There is, and there will some day be written, a history of 
law; and the particular development of Roman law and of 
English law will first be wholly intelligible when each is 
regarded as a stage in the development of the law of the 
world. 

A professor in one of our university law schools was accus- 
tomed, as I have been told, to open his first lecture by declar- 
ing that it was not his intention to treat of the law of Eng- 
land, or of the law of the United States, or of the law of his 
own commonwealth, but of law. This announcement, of 
course, exaggerated purposely the point which he desired 
to emphasize; but it will serve to illustrate the point which 
I am trying to make. A science of English law or of Anglo- 
American law is as inconceivable as a science of Anglo- 
American ethics or economics. It is, indeed, as unthinkable 
as a science of American physics, or mechanics. 

It follows that, for the scientific study of law, some knowl- 
edge of the Roman law is absolutely necessary; for the civi- 
lized world is ruled to-day by two great systems of private 
law, the English and the Roman, and as soon as the student, 
who is to employ the comparative method, emerges from the 
English law, he plunges into Roman law. 

From the purely scientific point of view, moreover, the 


Roman Law in American Law Schools 265 


study of the Roman law, ancient and modern, is more im- 
portant than the study of the English law. The latter, as 
far as it is an independent product, is the product of a shorter 
period of conscious, reflective development —a period that 
covers scarcely one-third of the centuries that have been con- 
sumed in the development of the modern Roman law. The 
English law, again, is the product of the genius of a single 
highly-gifted race. The Roman law of to-day is the product 
of the cooperation of all the other races that have helped to 
make general history. Even in the ancient world the insti- 
tutions and customs of all the Mediterranean peoples were 
fused by a process of selection that was partly automatic 
and partly reflective, into the universal law, the ius gentium 
of the Roman empire; and in the scientific elaboration of 
this law Romans, Greeks, Semites, Gauls and Spaniards 
labored side by side. In Medieval Europe a new ele- 
ment was added to this already cosmopolitan law by the 
introduction of Teutonic institutions and ideas; and in the 
further scientific development of this. wider ius gentium 
all the modern nations of continental Europe have had a 
share. | | 

If an example be needed to demonstrate the scientific value 
of Roman law to the English jurist, it is only necessary to 
compare the jurisprudence of Bentham and Austin, itself not 
uninfluenced by the “ dust of the Roman jurisprudence ”’ 
which they had half consciously inhaled, with the juris- 
prudence of Holland and Pollock, vitalized by a deeper in- 
spiration of living Roman law. 


IV 


I have examined the questions proposed in the light of 
what seem to me the three possible theories of legal educa- 
tion. Which of these theories, now, shall we accept as the 
true theory? For me, each has its justification, and each 
should obtain at least partial recognition. ‘The American 
law school must train practitioners—that is, indeed, its 


266 Roman Law in American Law Schools 


primary purpose —and it should so train them that they 
may earn a livelihood, for this is the immediate end which 
nearly all men must set before themselves. But it should 
not content itself with this. It should strive to make of 
all its graduates professional men, imbued with the spirit 
of public service and fitted to discharge the duties which our 
social organization and our national custom impose upon 
the legal profession. And it should strive to imbue all of 
them with the scientific spirit, not merely because the scien- 
tific spirit brings with it the professional spirit in its high- 
est and purest form, but for the sake of legal science itself, 
of which our law schools should be the great and general 
reservoir. And besides awakening in the minds of all of its 
students, as far as this is possible, the scientific spirit, the 
law school should provide a special training for the chosen 
few who are able and willing to devote their lives to the 
investigation of legal history and jurisprudence. ‘This our 
university law schools, at least, should do; for a university 
that contents itself with the preservation of the inherited 
capital of science, and makes no provision for its increase, 
is a university only in name. 

If this view be accepted, I think it must be recognized 
that some knowledge of Roman law should be required from 
every candidate for a law degree; and that advanced elective 
courses should be established in European legal history and 
modern European law for the few who desire to devote them- 
selves to the widening of the borders of legal science. 

If the preceding discussion be viewed by any reader as a 
brief for the Roman law, he will wholly mistake the spirit in 
which it has been written. Had I undertaken to plead, as an 
advocate, for the study of Roman law in American law 
schools, I should have claimed far more, and conceded much 
less. I have striven to take a judicial rather than a partisan 
view of the claims of the Roman law, and in all doubtful 
points I have charged rather against than in favor of claims 
which my prejudices would lead me to support. 


Roman Law in American Law Schools 267 


Vv 


The question remains to be considered, how the Roman 
law should be studied. To answer this question we must 
consider what are the most valuable portions of that law — 
the portions that constitute a permanent contribution to 
legal science. 

The most valuable portion of the Roman law is incon- 
testably the private law. The whole doctrine of private 
rights was first clearly worked out by the Romans, and these 
rights were formulated with a sharpness of outline which no 
Teutonic system of law has ever equalled. In the Roman 
private law special stress should be laid upon the law of 
things, and upon that of contractual and quasi-contractual 
obligations. The law of testaments should be noticed, but 
with less detail. Roman succession ab intestato deserves 
little attention. It is of even less scientific value than the 
order of succession in the code Napoléon. Both are arbi- 
trary things, but the latter is of more interest de lege ferenda. 

The Roman law of personal status and of the family re- 
lations should be relegated, for the most part, to the limbo 
of legal antiquities. To the American law student the legal 
status of the Latini Iunianz is of less consequence than that of 
the German Jiti; and the doctrine of peculium quasi-cas- 
trense is more remote from our modern life than the matri- 
monial property law of the early Suabians. Of all this portion 
of the Roman law so much only is needed as may be necessary 
to understand cases in the Digest which deal with property 
rights or obligations, but which turn in part upon the rela- 
tion of husband and wife, father and son, or master and 
slave. And, perhaps, even so much had better be taught in- 
cidentally, in discussing the cases, than set forth dogmati- 
cally in a course on the Institutes. 

It is the great fault of the attempts now making to intro- 
duce the study of the Roman law in England and in America 
that too much time is devoted to the Jnstitutes of Justinian, 
_and too little, if any, to the Digest. The latter is a vast re- 


268 Roman Law in American Law Schools 


pository of case-law, from which a judicious instructor can 
select matter of permanent value. ‘The former is an at- 
tempt to set forth dogmatically, in brief compass, the legal 
rules which were of chief importance in the sixth century. 
It includes, therefore, much that is of purely antiquarian 
interest. In England, where the /nstitutes are now a re- 
quired study, the vice of the system shows itself clearly in 
the cram-books. In Chamier’s Manual, for example, the 
student can learn something about the freedmen who were 
treated like Latins, and about the peculium quasi-castrense; 
but the law of contractual obligations is condensed into 
thirty-six small pages of heavily-leaded large type, and, as 
far as I can discover, no hint is given that obligations were 
assigned by the Romans, as by Englishmen, by making the 
assignee an attorney in his own interest. 

However brief the time that can be devoted to a required 
course of Roman law in an American law school — and the 
minimum that could possibly be of any use would be three 
hours a week for four months —at least half of this time, in 
my opinion, should be devoted to cases from the Digest — 
cases similar in their nature and, as far as possible, in the 
conditions given for their decision, to the cases with which 
we have to deal to-day. So taught, Roman law should in- 
terest the most narrowly utilitarian of students, and to those 
who have a spark of the scientific temper it should open 
new vistas of thought and a wider mental horizon. 


VI 
CUSTOMARY LAW.* 


I 


RoMAN, MEDIZVAL AND MODERN THEORIES. 


AT the time when the Roman law had reached its highest 
development, when the supreme power: of interpretation 
was vested in a personal sovereign, the emperor, and when 
such changes as seemed desirable and could not well be 
made by interpretation could be and were made by im- 
perial enactments, the Roman jurists and the emperors 
themselves asserted that law was established by custom as 
well as by legislation. They treated these two sources of 
law as equal in potency: they recognized that law, whether of 
customary or of legislative origin, might be changed either 
by legislation or by custom.” Even written law, they de- 
clared, might be superseded by a contrary custom, or dis- 
appear in consequence of non-user: “enactments,” Julian 
wrote, “ are abrogated by desuetude.” * The jurists who ex- ~ 
pressed these opinions were not closet thinkers, but were 
actively engaged, as judges and as members of the im- 
perial council, in the administration of justice and in the 
drafting of laws. | 

Neither in the Roman juristic literature nor in the im- 
perial constitutions do we find any dissent from these doc- 
trines. The only qualification anywhere hinted occurs in 
an imperial rescript of the fourth century, in which it is 
declared that custom is not to prevail against the spirit and 
purpose of the law as a whole, or against imperial legisla- 


1 The first part of this essay is reprinted from the Political Science 
Quarterly, vol. xviii, no. 2, June, 1903, pp. 256-281. The remainder is from 
manuscript. 

2 Digest 1, 3, fr. 32-40. Cf. Inst. 1, 2 §9, and Cod. 8, 52 (53). 

Speeigete es 2th 42,901, Ci. inst. 1, 2,5 11,,and. 4, 4,8 7; Cod. 6, 51, Cc. 
unica, pr.; Nov. 89, c. 15. 


270 Customary Law 


tion.* If this passage be construed to apply to custom in 
general, it becomes wholly inconsistent with the dicta of 
the imperial jurists and with other utterances of the em- 
perors themselves. It probably refers to local customs; 
and the principle which it affirms applies equally to local 
custom and to local legislation. In a state in which law- 
making power is centralized, no form of local law can pre- 
vail against general law.’ 

The Roman doctrines regarding customary law were 
neither challenged nor doubted in the middle ages; but, 
as far as secular land was concerned, the qualification which 
we have just noted disappeared. The medizval Euro- 
pean idea of the relation of local and general law was 
precisely opposite to the Roman imperial idea. According 
to the medizval idea, the local law of the manor, village 
or city, whether written or unwritten, prevailed against 
the law of the province, and the law of the province pre- 
vailed against the law of the realm. This idea squared with 
the political facts, at least after the disruption of the em- 
pire of Charles the Great; and it began to disappear only 
when the political facts changed — when, first in England, 
later on the Continent, the hands of the kings were so 
strengthened that they were able to establish national states. 

As far, indeed, as ecclesiastical law was concerned, the 
church upheld the Roman idea. It asserted that neither 
local nor provincial nor national law or custom, whether 
secular or ecclesiastical, could displace the general law of 
Christendom.® It made significant reservations, however, 

4 Cod. 8, 52 (53), c. 2: *‘ Consuetudinis ususque longaevi non vilis auc- 
toritas est, verum non usque adeo sui valitura momento, ut aut rationem 
vincat aut legem.” Cf. Nov. 134, c. 1, in fine; Decr. Grat., dist. 11, c. 4, and 
Decretal. Greg. IX. 1, 4, c. 11. Ratio iuris (and, often; ratio alone) is 
something narrower and more definite than reason. Ratio legis is the 
intent or purpose of a particular law; ratio iuris the tendency of the law 
in general. See. Heumann, Handlexikon zu den Quellen des romischen 
Rechts, “ Ratio” (5) and passages there cited. 

5 So Windscheid, Pandekten, vol. i, § 16, n. 5; § 18, n. 2. For other ex- 
planations, see Vangerow, Pandekten, vol. i, § ee? note. Dernburg, Pandek- 
ten, vol. i, § 28, n. 5, rejects all explanations offered, and assumes a flat 
contradiction. 

8 Decr. Grat., dist. 11, c. 1-3, 11; dist. 12, c. 1, 2. Decretal. Greg. IX, 


I, 4, C. 3, 4, 5, 7. Sexti Decretal., 1, 4, c. 1. 2. Extrav. comm., I, I, C. 
unica. 


Customary Law 271 


which facilitated compromise. If neither the unity of the 
Christian faith nor the necessary discipline of the Christian 
Church were impaired or imperilled, not only might na- 
tional councils adopt rules varying from those of Rome, 
but a contrary custom in a locality might be pleaded against 
the general laws of the church;* and even in the absence 
of any such positive legislation or custom, it was some- 
times inquired whether the general rule established by the 
church had ever been ‘ accepted” *—a practice which 
led to Gratian’s broad assertion that ‘‘ laws are instituted 
when they are promulgated; confirmed, when they are 
approved by the custom of those who observe them.” ® 

Apart from this question of the relation between general 
and local law, the medieval theory was identical with that 
of the Roman jurisprudence. Any different theory would 
have been singularly inconsistent with the legal situation. 
Not only were the customs of manors, of cities and of 
provinces recognized as law; there were also general Euro- 
pean customs. Decisions made in Lombardy were cited 
in all the feudal courts of Europe; judgments rendered at 
Pisa, at Barcelona and at Oléron enjoyed an equally wide 
authority in questions of commercial and maritime law. 
Class custom was law not only for merchants, but also for 
artisans and peasants; and in certain matters (particularly 
in family law) the same authority was ascribed to the cus- 
toms of different religious confessions. ‘The destructive 
force of desuetude was recognized, not only as against cus- 
tom but as against written law. Even legislators, in affirm- 
ing the validity of older collections of written laws, some- 
times added the significant limitation, ‘‘ as far as these are 
still in use.” *° 

After the close of the middle ages, a different theory 
prevailed. Legislation was exalted above custom: it was 
denied that written law could lose its force through des- 
uetude or be displaced by contrary custom; it was even 

7 Decr. Grat., dist. 11, c. 6, 8; dist. 12, c. 3, 4, 6-11. Decretal. Greg. IX, 
I, 4, c. 8. Sexti Decretal., 1, 4, c. 3. Cf. Maitland, Canon Law in Eng- 


land, p. 10, 0. 3; 4. * Decr. Grat., dist.’ 4, c. 3. 
8 Cf. Maitland. op. cit., pp. 31, 32. 10 F.g., Leyes de Toro (1505) 1. 


272 Customary Law 


denied that custom was or could be law otherwise than by 
the express or implied consent of the legislator.» The 
development, or at least the general acceptance, of these 
views was closely associated with political changes which 
were taking place at the close of the middle ages, and with 
legal changes which were beginning at that period and which 
have been completed in our own time. On the Continent, 
the modern national state obtained its political organiza- 
tion in the absolute monarchy; the monarch was regarded 
as sovereign; ** and to admit that his actions could be re- 
strained or his commands invalidated by custom was to 
deny his sovereignty and make his power merely govern- 
mental.** Within each national state common law was 
needed, and on the Continent this could be developed only 
by legislation. The transition from feudal to democratic 
society required sweeping legal reforms, and these could 
be made only by enactments. 

In some of these matters the English political and legal 
development was altogether different from that of the Con- 
tinent; in others an analogous development took place, but 


11 Some of the Roman jurists had already attempted to assimilate cus- 
tom to enacted law by treating each as an expression of the will of the 
sovereign people. Cf. Julian, in Digest 1, 3, fr. 32 § 1: “Nam cum ipsae 
leges nulla alia ex causa nos teneant, quam quod iudicio populi receptae 
sunt, merito et ea, quae sine ullo scripto populus probavit, tenebunt omnes; 
nam quid interest suffragio populus voluntatem suam declaret an rebus ipsis 
et factis?’’ Cf. also Hermogenian, eod. tit., fr. 35; ‘‘ velut tacita civium 
conventio.” But the conclusions drawn from this doctrine of popular 
sovereignty were opposite to those which have been drawn in modern times 
from the attribution of sovereignty to the legislator. In the sentence which 
immediately follows that above cited, Julian says: “ Quare rectissime etiam 
illud receptum est, ut leges non solum suffragio legislatoris, sed etiam tacito 
consensu omnium per desuetudinem abrogentur.” 

12 The common impression that the reception of the law-books of 
Justinian contributed to the development of the theory of princely sov- 
ereignty is, of course, quite correct; for in the later imperial constitutions 
there are clear assertions of the divine right of the prince: terrestrial majesty 
is derived by delegation from celestial majesty. In Justinian’s Digest 
sovereignty is with the people; in his Jmstitutes the imperium et potestas of 
the prince are derived from the people; in his Codex the emperors claim to 
rule iure divino. 

13 Burgess, Political Science and Constitutional Law, vol. i. pp. 66, 93, 
127, maintains that the authority of the absolute monarch was only govern- 
mental. He describes the absolute monarchies of Western Europe as demo- 
cratic states with monarchic governments. His theory is thus identical 
with the juristic theory of the Roman principate. 


“yy 


Customary Law 293 


not by any means an identical development. Even a brief 
comparison will show, I think, that while the new “ theories 
were a natural product of Continental conditions, they rep- 
resented in England either fruitless protest or unnecessary 
imitation. 

In England, governmental power had been centralized 
three or four centuries earlier than in any other modern 
European state; and in the period in which absolute mon- 
archy was giving national organization to Spain and to 
France, the English national state was strong enough to 
tolerate the transfer of governmental power from the crown 
to the king in Parliament. In the reaction towards 
absolutism, however, which followed the disorders of the 
seventeenth century, the new theories found a classical for- 
mulation in the Leviathan. WHobbes declared that all law 
proceeded from the sovereign, and that custom was law only 
by his allowance.” He fully recognized that sovereignty 
might be vested in an assembly of aristocrats or in a pop- 
ular assembly,*® but he regarded monarchic sovereignty as 
the best organization of the state, and he asserted that in 
England sovereignty was in the king.*’ In England, naturally 
enough, his theory was not generally accepted until it was 
fully recognized that sovereignty was elsewhere than in the 
king. 

A second great difference between England and the Con- 
tinent, at the close of the middle ages, was that England 
had what no Continental state possessed, a supreme “ custom. 
of the realm,” developed by the decisions of the royal courts, 
and continually readapted by reinterpretation to the chang- 
ing needs of English social life. On the Continent, where 
the central governments of the single states were too weak 


14 Jt is hardly necessary, but it is perhaps prudent, to say that the word 
“new ” is used relatively. 15 Leviathan, ch. 26. 

16 Hobbes’s secure title to fame rests on the fact that he formulated a 
theory of sovereignty which is applicable to every form of state, although, 
like all medieval and nearly all modern thinkers, he confused state and 
sovereignty with government and governmental power. His great service to 
jurisprudence lies in the drawing of a. sharp distinction between natural and 
positive law. 17 Jbid., ch. 18, 19, 22. 


274 Customary Law 


to furnish national law, either by legislation or by a control- 
ling central interpretation, a different development had taken 
place. At the close of the middle ages nearly all the Con- 
tinental law was either less than national or more than 
national: it was either local or European. To the ecclesiasti- 
cal law, the feudal law and the law merchant, all of which 
were European systems, had been added, by the recep- 
tion of the law books of Justinian, the Roman civil law. 
The acceptance of all this common European law did not, 
however, solve the problem of furnishing common law to 
each state; for most of this European law, and notably the 
Roman civil law, had subsidiary force only: it was appli- 
cable only in cases for which neither provincial nor local cus- 
tom nor city law supplied a rule. To get rid at once of 
European law and of local law —to substitute national law 
for European law, and to make this national law the supreme 
law of each country, overriding the various provincial and 
local laws — the modern European states were obliged to 
resort to legislation. 

On the Continent, moreover, even before the close of 
the middle ages, the word custom had come to be nearly 
synonymous with local law. Nearly all the common Euro- 
pean law had been reduced to written form; and although 
neither the Roman civil law nor the canon law had been 
put into purely statutory form, although the Digest and half 
of the Codex of Justinian and a great part of the canon law 
consisted of digested decisions, all this European law was 
regarded as enacted law. Ina measure the same was true of 
the standard compilations of the feudal law and of the law 
merchant. On the other hand, the reduction of local cus- 
toms to written form did not generally bring about any 
such change of view or of nomenclature. Even when the 
customs of provinces and localities were unified, they were 
still termed customs. In becoming synonymous with local 
custom, customary law was identified with particularism. 
And since the local customs had not continued to adapt them- 
selves to the changing needs of even the smaller areas which 


Customary Law 275 


they governed, customary law was largely identified with 
outgrown law.** Under these circumstances it is not sur- 
prising that customary law came to be regarded with hostility 
and contempt. 

It is significant in view of this great difference between 
Continental and English conditions, that Hobbes displayed 
no such hostility to custom as existed on the Continent, and 
no such prejudice against judge-made law as was later 
manifested by Bentham. Hobbes was obliged to insist that 
custom was law only by 'the king’s tolerance, because Parlia- 
ment had invoked the political custom of the realm against 
the attempts of the Stuarts to expand prerogative. He left, 
however, a wide area for the judge-made common law by 
declaring general customs and unwritten law to be “ nat- 
ural law.” *® He maintained, indeed, ‘that the sovereign 
had the sole power of interpreting natural law, and that 
nothing that the sovereign did not recognize was law; but 
this power of interpretation was of course regularly ex- 
ercised by the king’s judges. These, he significantly de- 
clared, were not mere judges; they were more like the 


18 For a single example, take the report of the French royal commis- 
sioners who revised the Coutume of Normandy. (The old Coutume was a 
private compilation made in the fourteenth century: the revised Coutume was 
promulgated by Henry III in 1577.) In their procés verbal the commis- 
sioners explain that the provisions of the old Coutume were in a large 
measure “ hors d’usage et peu ou point entendus des habitans du pays.” And 
this was the end of a body of customary law which in the eleventh century 
was perhaps the most advanced in Europe; which had retained more than 
any other the institutions of the Frankish empire, and from which much 
of the English common law had been derived. Among the institutions 
“ out of use and not understood ” was the jury in its half-developed Norman 
form. Brunner, “ Quellen des normannischen Rechts,” in Holtzendorff, 
Encyclopddie, 5 ed., p. 328. It seems to be well established that law can- 
not develop beyond a certain point in a limited area. It must then expand, 
like the law of the Roman city; or borrow, like the law of the Swiss can- 
tons; or perish through arrest of development. 

19 “ Tf an unwritten law, in all the provinces of a dominion, shall be gen- 
erally observed, . . . that law can be no other but a law of nature.” ‘“‘ Civil 
and natural law are not different kinds, but different parts of the law: 
whereof one part, being written, is called civil, the other, unwritten, natural.” 
Leviathan, ch. 26. Taking this last utterance in connection with his famous 
remark that natural laws are not properly laws, his attitude seems contra- 
dictory. His own theory, however, requires the conclusion that in so far as 
the sovereign recognizes and enforces natural law, it becomes (although still 
unwritten) positive law; and it is doubtless of such natural law only that 
he is thinking when he recognizes it as part of the law and not different in 
kind. 


276 Customary Law 


Roman jurisconsults.?° It is clear, I think, that Hobbes re- 
garded interpretation as a mode of legislation; and so far 
from showing any desire to restrict judicial law-finding, 
he maintained that the royal judges should pay less regard 
to precedents.”* 

On the Continent, common law (i.e., national law) could 
be established only by legislation; for when princely govern- 
ment became strong enough to centralize the administration 
of justice, the diversities of local and class law were too 
great to be interpreted away. Consequently, during the 
past three centuries, and particularly during the nineteenth 
century, the Continental European states have legislated 
to an extent unprecedented in legal history. They have 
attempted to cover the whole field of legal relations with 
codes, and to make these codes so complete as to leave no 
room for the survival of the European and local systems 
against which they were waging war. This movement be- 
gan in France with the great ordinances of Louis XIV, 
regulating commerce and civil and criminal procedure; and 
it has gone on throughout Europe till the present day.” 
It has recently been completed in Germany, and is on the 
eve of completion in Switzerland, where the cantons have 
been as autonomous as were the German territories or the 
medieval provinces of France.* 7 

In the midst of this process came the revolutions of the 
eighteenth and nineteerith centuries. The reorganization of 
government on a more or less popular basis was secured 
by legislation: in all the states of Western and Central 


¢ 20 Ibid. 

21 “No man’s error becomes his own law, nor obliges him to persist in 
it. Neither, for the same reason, becomes it a law to other judges, though 
sworn to follow it.” Ibid. 

22 Cf. “State Statute and Common Law,” Political Science Quarterly, 
vol. ili, pp. 153 et seq. : 

23 German imperial legislation has left considerable legislative power with 
the states, but not in the field of private law. It is already evident that a 
similar solution will be attained in Switzerland. In Spain the civil code 
leaves the laws of several important provinces in force, and has only sub- 
sidiary application; and in the dual monarchies of Austria-Hungary and 
Sweden-Norway dual legal systems exist; but in all the other states of 
Europe the law has been made uniform by the adoption of general codes 
of supreme validity. 


Customary Law 277 


Europe the unwritten law was replaced by written con- 
stitutions. The limitation of princely power, like its de- 
velopment, was attained by overriding customary law of the 
highest order of validity, constitutional custom; and the 
theory which was brought forward to justify the later move- 
ment, like that adduced in support of the earlier, was of 
necessity a theory of sovereignty. Hobbes’s argument that 
a seeming grant of powers of sovereignty by the sovereign 
is void, “ for, when he has granted all he can, if we grant 
_back the sovereignty all is restored,” ** was substantially 
reproduced in the revolutionary assertion that the rights 
of the people are ‘“ imprescriptible.’””’ What here concerns 
us is that in each case the legality of the earlier political 
custom was impugned, and that in consequence all cus- 
tomary law was in a measure discredited. 

The development of the English constitution, which has 
been accomplished with few abrupt changes, has never re- 
quired in any such degree the discrediting and delegalizing 
of earlier custom. Constitutional statutes have been passed 
from time to time, but much of the fundamental law has 
remained unwritten. It has held its own against absolutist 
tendencies, whether these were royalistic or democratic. 
Hobbes’s denial of the validity of the custom of the con- 
stitution was never generally accepted; parliamentary 
government is carried on to-day with the machinery and in 
the form of government by the crown. No such prejudice 
against political custom as arose in the Continental mon- 
archies has ever existed in England, because for centuries 
the custom of the constitution has been identified with the 
limitation of governmental power and the protection of popu- 
lar rights. 

Modern Continental legislation, finally, has had yet an- 
other incentive and has attained another end. The older cus- 
tomary law, reflecting the social conditions of the middle 
ages, was an unequal law. By legislation class privileges 
have been abolished; disabilities of birth and creed have 


24 Leviathan, ch. 18. 


278 Customary Law 


been removed; equal law has been established. These re- 
forms, which have at once marked and secured the transition 
from feudal-aristocratic society to modern democratic soci- 
ety, were in part accomplished by special enactments. They 
did not require the revision and codification of the whole law. 
To a large extent, however, the new rules that were required 
were worked out in the great national codes of civil and crim- 
inal law and procedure. Here we have an additional reason 
for the Continental antipathy to customary law. To the 
people of the eighteenth and even to those of the nineteenth 
century, customary law connoted not only particularism and 
an inconvenient diversity of local rules, but also inequality, 
with privileges for the few and disabilities for the many. 
Here for the first time, in considering legislation as an 
agency of social reform, we find an analogy between Con- 
tinental and English development, and a reason for English 
dissatisfaction with the custom of the realm as interpreted 
and developed by the English courts. The analogy, indeed, 
is not complete, nor does the reason seem to amount to a 
justification. In England the development of class privi- 
leges had been restrained by the early centralization of law- 
finding: the common law was not only common to all Eng- 
land but to all Englishmen. The transition from feudal 
to democratic society began earlier in England than in 
any Continental kingdom,*? and some of the necessary 
changes in the law were made by judicial modification of 
the common law, others by acts of Parliament. In the 
eighteenth century the English law contained less medizval 
débris than the legal systems of the Continent. It contained 
enough, however, to make Bentham’s. attitude comprehensi- 
ble. Rapid and sweeping reforms of the law, such as he 
rightly desired, could be made only by legislation. It was 
not necessary for the realization of his practical aims that 
Judges should cease to find law; but it is quite intelligible 
that the inability of the judges to find the sort of law he 


25 Not earlier than in the Continental cities, but earlier than in any 
system of territorial law upon the Continent. 


Customary Law 279 


wanted should have blinded him to their usefulness as law- 
finders, and should have led him to regard legislation as the 
normal mode of making law. For the rest, he and the 
other English utilitarians seem to have been much in- 
fluenced by Continental tendencies,’* and the analytical 
theory took its final form without adequate analysis of the 
conditions which had produced those tendencies. Not per- 
ceiving that the Continental states were codifying in order 
to obtain what England already possessed, a national law, 
they assumed that codification was the natural goal of all 
legal development. If we say that English analytical juris- 
prudence began with Hobbes and ended with Bentham 
and Austin, we may say that it began with a defence of 
royal absolutism, which England had already repudiated, 
and that it ended in a demand for general codification, which 
neither England nor any of the people that have inherited 
the English common law have thus far recognized as nec- 
essary. 

This review of conditions and theories, and of their inter- 
working during the past four centuries, would be incomplete 
without a word regarding natural-law doctrines. These 
ancient theories, which had little more than speculative 
interest in the middle ages, became of great importance in 
the seventeenth and eighteenth centuries. The assertions of 
Cicero and of Thomas Aquinas that laws contrary to natural 
law were not truly laws, that they were the corruption of 
law — these assertions became dynamic when the interpreta- 
tion of natural law passed from the church and the princes to 
the people, z.e., to any one who chose to set himself up as 
a natural lawyer, and whose assertions gained popular ap- 
proval. The fundamental principles of the new law which 
was required in the transition from princely to popular 

26 The ideas and tendencies which we associate with Bentham’s name 
were dominant in Europe in the later decades of the eighteenth century. 
Bentham’s ideal of a code which was to determine every possible legal 
controversy, and leave no loop-hole for the making of law by judicial de- 
cisions, was the ideal, for example, of the authors of the Prussian Code of 


1794. See ‘‘State Statute and Common Law,” Political Science Quarterly, 
vol. ii, pp. 108, 109, n. Supra, p. 56, n. 


280 Customary Law 


government and from feudal to modern society were 
proclaimed as natural law in the seventeenth and eighteenth 
centuries; and the assertion that these principles were al- 
ready law did much to hasten their acceptance. Words 
are forces; and to say that the particular arrangements and 
rules which one desires are law is a much more effective 
mode of agitation than to say that they ought to be law. 
The revolutionary natural lawyers said both: “ Are and 
ought to be” was the natural-law formula. In this way the 
natural-law doctrines gave to the revolutions what seemed 
a legal basis; and they made the legislation in which the 
results of revolution were embodied seem merely declara- 
tory."’ But before natural law can be applied, it requires 
something more than declaration, it must be worked out 
in its details by judicial construction or by legislation; ** and 
the revolutionists and reformers naturally adopted the more 
rapid method of statutory construction. ‘Theoretically, the 
natural-law school was sharply distinguished from the posi- 
tivist or analytical school, since the latter denied that nat- 
ural law was law at all. But when the English succes- 
sors of Hobbes had become dissatisfied with the custom of 
the realm and desired legislative reforms, and the natural 
lawyers were hastening to transform all their natural law 
into positive law, the tendencies of the two schools became 
indistinguishable. It has ‘been shrewdly remarked that 
English utilitarianism was really a natural-law system; and 
in fact Bentham and the natural-law writers had an equally 
firm faith in the power of reason (7.e., their reason) to find 
the right solution of all social problems, and an equally poor 
opinion of the results of the thought and experience of 
antecedent generations. The attitude of the natural lawyers 


27 The declaratory form was typical. As the American Colonies had 
declared in 1776 that they not only ought to be but were already independ- 
ent, so the first French attempt to define the fundamental rights of the 
individual took the form, not, as in England, of a bill but of a declaration. 
In the United States, where natural-law theories have survived longer than 
in Europe, the declaratory form has not infrequently been used in the 
nineteenth century. 

28 “ The law of nature . . . is become of all laws the most obscure, and 
has consequently the greatest need of able interpreters.” Leviathan, ch: 26. 


Customary Law 281 


and of the English utilitarians toward historical law in gen- 
eral and customary law in particular was thus practically 
identical. Both disliked custom and regarded it as some- 
thing anomalous. 

With the reaction against the revolutions came a scientific 
reaction against natural-law theories. The leaders in the 
new movement were accused, and not without ground, of 
being reactionaries in politics and obstructionists in the mat- 
ter of social reform; but the fundamental tenets of histori- 
cal jurisprudence were soon accepted by liberals and re- 
formers (perhaps because the natural-law propaganda had 
substantially accomplished its ends) and _ the _ historical 
school became dominant. With the acceptance of the his- 
torical point of view in England there has come also a 
reaction against the analytical school. The historical jurists 
have done much to rehabilitate customary law. They main- 
tain that custom, so far as it is observed and enforced, is 
really law, whether its rules agree with the views of natural 
lawyers or not. As against the analytical jurists they assert 
that much law has existed, and some law still exists, which 
cannot be traced to the direct or indirect command of any 
determinate sovereign. Nevertheless, the historical jurists 
do not generally attribute to custom any such constant ef- 
ficiency as was apparently attributed to it by the Roman 
jurists. Custom, in their view, is the chief source of early 
law, but it plays no important part in making late or highly 
developed law. The dominant opinion, not merely of Eng- 
lish but also of Continental jurists, is expressed by Pollock: 
“Except in matters outside the scope of positive law, the 
formation of custom belongs to an archaic stage of legal 
history.” *° 

In considering this remark and similar utterances of 
other modern writers, two things are to be noted. To 
English and to Continental jurists alike, modern custom 
means local custom. On the Continent this is natural 


29 First Book of Jurisprudence, p. 265. German jurists would hardly 
indorse the word “ archaic,” but most of them would accept the word “ past.” 


282 Customary Law 


enough: European custom had been reduced to written form 
long before it was displaced by national codes, and, except 
in ‘the political field, no national customs had developed. A 
body of what we should call judge-made law is now rapidly 
growing up about the new national codes, but this is not 
generally regarded as law: it is merely “ interpretation.” °° 
In England, where a custom of the realm has existed for 
several centuries, where this custom has been only partially 
replaced by acts of Parliament, and where it is still develop- 
ing, as it has always developed, from precedent to precedent, 
the restricted use of the word custom is less easily ex- 
plicable. If the English common law is not the general 
English custom, what is it? We are sometimes told that 
it is a scientific development of the ancient customs of the 
realm. This indisputable statement does not directly an- 
swer the question with which we are here concerned; but 
taken in connection with the repudiation of the Hobbes- 
Austin theory, that judge-made law is a sort of legislation, 
and with the refusal ‘to describe judge-made law as custom- 
ary law it seems to imply that there is a third species of 
law which rests neither on legislation, nor on custom, but on 
“ science.”’ ** ' 

It is to be noted, in the second place, that those who 
describe custom as a vanishing form of law exclude or ignore 
some portions at least of public law. Some jurists seem to 
deny the legal character of those rules that are not enforced 
through courts of justice, thus excluding a considerable 
part of international, of constitutional, and even of admin- 
istrative law. The majority of modern jurists, especially on 
the Continent, declare that all public law, including inter- 

30 In Germany, indeed, judicial usage (Gerichtsgebrauch, Praxis) is be- 
ginning to be recognized as customary law (Gewohnheitsrecht). The newer 
theories on this point will be noted later. 

81 The term “scientific law,” which was employed by Savigny, is 
familiar on the Continent; but in the Continental theory scientific law is not 
positive law until it is incorporated in legislation or becomes customary law 
by the general acquiescence of the community. The present controversy 
in Germany, to which allusion is made in the preceding note, turns on the 


question whether judicial custom, as such, is positive law or whether it 
becomes positive law only by force of popular custom. 


Customary Law 283 


national law, is really law; but in discussing the sources of 
modern law (as indeed generally in framing their systems of 
jurisprudence) they seem to be thinking of private law 
only. 

If an attempt to determine the nature of customary law, 
and to indicate what place it occupies in the modern civilized 
world, were to lead us into, and leave us in, a quarrel over 
the meaning of the words “law” and “ custom,” it would 
- be of questionable advantage to prosecute any such inquiry. 
If, however, it can be shown that archaic custom and mod- 
ern public law, local custom, class custom and modern judge- 
made law, exhibit in their development and in their character 
similarities so great as to justify their. inclusion under a 
single term; if it can be shown that, even at the present time 
and among the most highly civilized nations, legal rules are 
coming into existence without legislation, by processes anal- 
ogous to those through which customary law has always 
been produced; and that, as long as human society, as we 
_ know it, continues to exist, a very appreciable quantity of 
such rules will inevitably be produced by such processes, — 
if these things can be shown, the question of nomenclature 
becomes one of secondary importance. And even if the re- 
sult of the inquiry be simply a reaffirmation of the substan- 
tial truth of the Roman view that all law is produced either 
by custom or by legislation, and that custom and legislation 
are factors of equal potency, even this result may perhaps 
be regarded as a contribution to legal theory. 


ARCHAIC CUSTOM 


The resemblance between the mode in which early cus- 
tomary law is developed and the mode in which late unwritten 
law is produced has been obscured by the German historical 
jurists. They describe early custom as “popular usage ” 
(Volksgebrauch), and the law of which it constitutes so 
large a part as “popular law” (Volksrecht); and they 
contrast this popular law, as such, with the “official law” 


284 Customary Law 


(tus honorarium, Amtsrecht) which is imposed, at a later 
period, by governmental power. Both of these forms of law 
are further contrasted with legislation. The element of truth 
in these contrasts will occupy us later: what now con- 
cerns us is the sense in which early customary law is de- 
scribed as popular. We find that these jurists generally 
assume and frequently assert that such law emanates di- 
rectly from the people at large. Some of them hold that it 
is established by the spontaneous acts and forbearances of ~ 
the people. Others assert that the conduct of the people 
supplies only the visible manifestation of the popular law, 
and that this law exists, antecedent to any such manifesta- 
tion, in the “ jural consciousness ” (Rechtsbewusstsein) of 
the people.** 

These assumptions and assertions are, I think, unten- 
able. Whether the so-called jural consciousness is really 
a spontaneous popular development is a question which we 
may leave to sociologists: it does not directly concern 
lawyers, for the simple reason that the content of this jural 
consciousness is not law. The jural consciousness is what we 
call, in English, the sense of justice or sense of equity. It 
is a mixture of ethical sentiment and of a more or less clear 
perception of social utilities, applied to matters which we 
regard to-day as matters of law. It may exercise a control- 
ling influence upon the making of law; it is perhaps the 
source of the majority of those rules of conduct which ulti- 
mately become legal rules; ** but it contains nothing more 
than law “in the making,’ or, as a German might ex- 
press it, werdendes Recht. ‘The error in the German assump- 
tion that the content of the Rechtsbewusstsein is law is con- 
cealed, and the assumption itself is probably caused, by the 
ambiguity of the word Recht, which (like the words ius, 
droit, diritto and derecho) may mean either ‘ethical right 
_ 32 Cf. Vangerow, Pandekten, § 14. References to the German literature 
wie Theue denies the priority of the jural consciousness, and declares it to 
be a product of positive law. See his Entwickelungsgeschichte des romischen 


Rechts, Einleitung. Cf. Political Science Quarterly, vol. xii, pp. 32 et seq. 
Supra, p. 184 et seq. 


Customary Law 285 


in the abstract or a concrete legal right or law in the ab- 
stract. 

The assertion that customary law is established by the 
spontaneous acts and forbearances of the people at large 
is more plausible. It must be remembered, however, that 
social habits are not necessarily legal customs; that not 
every rule of conduct is a rule of law. In case of doubt, we 
must inquire whether the observance of the rule is secured 
by any sort of penalty for non-observance, and if so, by what 
sort of penalty. If the violation of a rule entails ridicule or 
contempt, unpopularity or general detestation, and nothing 
more, the rule is not what we should call a legal rule. If 
the violation of the rule is believed to bring upon the offender 
divine displeasure, and if it brings nothing more, the rule is 
still not a legal rule. If, however, the man who has awakened 
the popular or divine resentment is thrust out of the com- 
munity or sacrificed to the gods, we have what may be called 
a legal sanction. In general, if the violation of a rule en- 
tails a penalty which affects the person or the property 
of the offender, if the violator is fined or flogged or muti- 
lated or slain or enslaved or banished, then we may say 
that a really legal sanction stands behind the rule and that 
the rule is undoubtedly legal. 

The beginnings of law in the proper sense are, therefore, 
to be found at the point at which the infliction of penalties 
affecting the property or the person begins to be assured; 
and if it be affirmed that any rule of early law is really 
popular in its origin, it must be shown that the people at 
large, and not a priest or a king, inflicts or secures the in- 
fliction of the penalty which is attached to the violation of 
the rule; for if it be a priest or king who takes the initiative, 
it is probable that the sanction which makes the rule a legal 
rule proceeded originally from the priesthood or the king- 
ship. And if we wish to go to the bottom of the question, we 
must further inquire, even when we find the people inflicting 
penalty or securing its infliction, whether the popular action 
is spontaneous or results from obedience to a priest or a 


286 Customary Law 


king; for in the latter case it is the priest or king who is 
really making a precedent and shaping the customary law 
of the community. 

In early criminal law there is much evidence of what 
seems to be spontaneous popular action. Some offences are 
so clearly injurious to the whole community that they 
awaken a spontaneous popular reaction, and the offender is 
lynched or expelled from clan and tribe. We commonly 
find, however, that it is the priests who declare whether this 
rough justice is pleasing to the gods. We find also that 
popular justice is limited to a small class of offences. In 
a larger number of instances, priests or kings inflict penalty 
or secure its infliction. 

In early society, the range of criminal law is compara- 
tively limited. Many acts which are regarded later as 
offences against the peace and welfare of the community 
are viewed as private wrongs simply; and those wrongs are 
redressed by self-help, z.e., by the act of the injured person 
or kinship-group. An attack upon the person, physical or 
moral, justifies not only self-defence but counter-attack. 
Wounding justifies retaliation; insult, revenge. When a man 
is Slain, it is the right and duty of his kinsfolk to exact blood- 
vengeance. Similarly, an attack upon possession justifies 
not only defensive but aggressive action; the person who 
has been robbed of wife or child or cow may summon his 
kinsmen and try to recover the stolen property, with some- 
thing to boot by way of satisfaction to his outraged feelings. 
In all these cases self-defence may be carried to the point 
of slaying the assailant. Recovery and vengeance may 
reach that point, if the offender resist. 

If, however, the offender and his kinsfolk be permitted 
in turn to avenge themselves; if, in particular, the kins- 
men of a slain murderer or thief be permitted by the com- 
munity to take vengeance for his blood—and there is 
evidence, particularly in early Germanic tradition, that this 
was at one time permitted — the so-called right of self-help 
is no right at all, nor is self-help a legal sanction. Even 


Customary Law 287 


if the act of reprisal be approved by the community, and 
the act of counter-reprisal disapproved, the right of self- 
help has not developed beyond the stage of moral right as 
long as the community remains passive. To make it legal 
right, the feelings of the community must express them- 
selves in deeds. There is no true right of self-help until 
the community begins to protect its exercise by defending 
the persons who exercise it This means the intervention of 
other and neutral kinship-groups to restrain the kinsmen 
of the original offender from seeking vengeance for his pun- 
ishment. Now, in the history of every tribal community 
there was, of course, in connection with each group or class 
of wrongs, an occasion on which such an intervention first 
took place; and because it was unprecedented, it is hardly 
likely that it was spontaneous and irreflective. It may well 
have occurred at the exhortation of a tribal priest or chief- 
tain. If it did occur spontaneously, as the result of a slowly 
ripened popular sense of justice or of expediency, there must 
have been no little discussion afterward, among the leading 
men of the tribe, of the question whether the intervention 
was rightful. Only by virtue of a general agreement on 
this point could the action of the neutral groups come to be 
regarded as a precedent for tribal intervention in future 
cases of like character; and only when the intervention had 
become a regular practice could the legal rule take form that 
the slain offender is rightfully slain, and that no vengeance 
or compensation is to be exacted for his blood.** Such a 
development cannot properly be termed spontaneous. 

If, again, we consider early forms of legal acts—e.g., 
forms of conveyance and of contract — which date from the 
period of self-help, and which constitute another great branch 
of early customary law, we are struck with the evidence of 
reflective construction which they bear on their very face. 
At a time when only such rights as were perfectly clear 


84 XII Tables, viii, 12: “iure caesus.” In the Anglo-Saxon laws, the 
slain offender is to lie “ ungylde”; in the Frankish laws “ absque com- 
positione.” Cf. Brunner, Deutsche Rechtsgeschichte, vol i, pp. 157, 158. 


288 Customary Law 


were at all likely to receive recognition and effective protec- 
tion, these forms aimed to make rights clear, not only by 
calling in witnesses but also by giving to these witnesses 
visible as well as verbal demonstration of the nature and 
content of the act. Hence, the constant use of symbols. 
These symbols were apparently connected, in many cases, 
with ancient superstitions; but the peculiarly expressive 
symbols which we find, for example, in early Roman and 
in early German law, give ample evidence of a reflective 
selection and adaptation. 

Through forms of conveyance and contract and through 
the development of remedial law, not a little substantive 
law took shape even in the period of self-help. In many in- 
stances we find traces of innovations and of ingenious 
adaptations of old customs to new uses — innovations and 
adaptations which could hardly have been made in the jural 
consciousness. Take, for example, in family law, the transi- 
tion from mother-right and uterine kinship to father-right 
and agnatic kinship; and consider the later restrictions 
placed upon the power of the husband who has bought and 
owns his wife — restrictions by which an unlimited property 
right became a limited power over a free person. Take, in 
property law, the extension of the right of following and 
punishing a thief until it became a process for recovering 
things even where no theft could be shown (furtum nec manti- 
festum, Anefang), with the resultant development of prop- 
erty rights which, in German law, became all more or less 
independent, and which in Roman law became almost 
wholly independent of possession. Take self-pledge, which, 
as a form of obligation, appears very early and seems very 
natural, and consider what it implies. It means that title to 
a thing can be held without holding possession, and that 
this possibility has been utilized first to create mortgage, and 
then through mortgage of the promisor’s person to create 
obligation.*° These are but a few of the illustrations that 


35 Nexum in the oldest Roman law was clearly a fiducia of the debtor’s 
person. 


Customary Law 289 


may be drawn from archaic custom, and that lead us to 
doubt its spontaneous popular development. 

Early usage, like all usage, is simply persistence in lines 
of conduct marked out by the practice of the past. Such 
usage however is not yet law. If the observance of a social 
practice has been and is absolutely uniform and uninter- 
rupted, if no living man remembers or has heard of any 
violation of the usage, and if there is no tradition as to the 
results which should attach to its violation, the rule by which 
the community is living is not a legal custom. It may be 
a rule of conduct of the highest importance, but it is not law. 
It cannot become law until it has been violated. Then for 
the first time the community is forced to decide whether 
the breach of usage shall be punished by any sort of physical 
coercion, or, if it has already been punished, whether the 
person or persons who have inflicted the punishment are to 
be punished in turn or protected. This decision is a legal 
precedent: it takes the broken rule out of the debatable do- 
main of usage, and assigns it provisionally either to the 
domain of morals or to that of law.*® If it be decided that 
punishment is rightful, and if this decision be followed in 
later controversies, a legal rule is established. 

The earliest customary law is thus the observance of 
legal precedents; and these precedents, as in modern law, are 
established .by decisions. These decisions, multitudes of 
which must have been made before right of jurisdiction over 
controversies had been vested in any single persons or 
bodies of persons, were, in a sense, decisions of the whole 
community; but they were really made by those persons 
whose position or age and familiarity with the customary 
law commanded deference if not obedience. The community 
as a whole might approve or reject a decision proposed, but 
the initiative, the formulation of the decision, rested with 
a few natural leaders of the community; usually, it would 


36 That the rule found is regarded as having always existed is a fiction 
which the English and American courts maintain in all their law-finding 
to the present day. In early society it is a very natural view, for the 
usage existed before it was found to be a legal custom. 


290 Customary Law 


seem, with the priests. Whether the decision first reached 
on a novel question should determine the attitude of the 
community in future controversies, depended again mainly 
on the attitude of these earliest law-finders; and as con- 
cordant decisions hardened into customary law, it was not 
popular custom but the custom of the law-finders that made 
the law. All that the people contributed was the custom of 
acquiescence. The expression, in clear and memorable say- 
ings, of the rules implied in the decisions — an achievement 
which to primitive men seemed a real law-making, and 
which perhaps first cleared the way for legislation — this was 
again the work of these leaders of progress and breakers 
of new paths. 

Savigny, who is chiefly responsible for the rather mystical 
theory of the really popular development of early custom, 
has taught us that, as soon as social relations become at all 
complex, a select body of lawyers appears and takes the 
development of the law out of the hands of the people. In 
fact, however, we have yet to discover, in history or in the 
uncivilized world of to-day, a community possessing anything 
that can fairly be called law, even in its rudest form, with- 
out discovering-at the same time traces of a select few who 
both make and interpret the precedents which constitute 
the law. The popular traditions, found almost everywhere, 
which base the ancient customs of the people on the de- 
crees of some great law-giver, probably contain more truth 
than the historical jurists are wont to admit. Romulus and 
Numa may never have existed, Moses may have been in no 
greater degree the author of the Jewish law than Alfred 
was the maker of Saxon or Rollo of Norman customs; but 
these and other legendary law-givers may be regarded as 
composite mythographs, each representing a long series 
of forgotten law-finders. 


GERMAN TRIBAL LAW AND ROMAN City LAW ~ 


When we pass from the period of unorganized law-finding 
to the period in which jurisdiction is vested in determinate 


Customary Law 291 


authorities, 7.e., in courts, we find that the customary law 
consists of the rules recognized in these courts. We find, 
also, that the progressive re-formulation of these rules in 
judgments is the work of a few men who are especially famil- 
iar with the legal traditions of the community, which are the 
residuum of forgotten precedents, and with the compara- 
tively recent precedents of which a distinct memory still 
survives. 

The old German court was indeed a popular court: it 
was attended by all the freemen, and its judgments were 
not valid without their approval. The judgments, however, 
were actually found by one or more ‘“‘ wise men” or “ ad- 
visers ” or “law-speakers.” Their “ wisdom” or declara- 
tion of the law seems to have been regarded as authoritative: 
among many tribes “ wisdom” means law.** Among some 
tribes the judgment, as formulated by these judgment-finders, 
was submitted to the people for approval by the king or prince 
who presided over the court; among other tribes it was 
submitted by the law-finders themselves at the request of 
the presiding king or prince, or on the demand of the plaintiff. 
The ordinary freemen who stood around (the Umstand) * 
simply approved the proposed judgment: they gave the 
“full word” (Vollwort.) *° 

In early Roman history there is no trace of any such 
popular court, except as an appellate court in criminal cases; 
and if Roman tradition may be trusted, this exception was 
not a survival but an innovation. The ordinary criminal court 
at Rome was apparently the court of the king himself, 
or of magistrates appointed by him; and judgment was 
rendered by the king or the magistrates without any popular 
codperation. Of the Roman civil courts in the royal period 
we know next to nothing: there are traditions of a royal 
administration of justice, and there are evidences of pontif- 

37 So in the Old High German, the Gothic, and the Old Saxon. Cf. 
Brunner, Deutsche Rechtsgeschichte, vol. i, p. 110. 

38 The law-finders, like the presiding official, were seated. If there 
were several, they sat on a bench. 

39 Termed, by Tacitus, auctoritas. The previous formulation of the 


judgment is indicated by the word consilium. Cf. Brunner, of. cit., vol. i, 
p. 154. 


292 Customary Law 


ical jurisdiction. ‘The civil court of the Roman Republic 
was a composite thing: pleadings took place before a magis- 
trate, but the case was sent for decision to one or more 
iudices. ‘These zudices were not necessarily learned in the 
law, and when they were confronted with legal questions of 
any difficulty they were guided by the opinions of jurists. In 
the Roman jurists of the republican period we have some- 
thing corresponding to the German law-speakers, but in a 
higher stage of development. The jurists of the royal and 
early republican periods were the pontifices. In the later 
Republic the jurists were laymen, and their authority, which 
was extra-legal, rested on popular recognition of their learn- 
ing and acumen.*® ‘This popular recognition, however, was 
of course based in each case on the opinion of the juristic 
class itself. That these jurists really controlled the deci- 
sion of the unlearned zudices on all legal questions cannot 
be doubted. They also, and they alone, kept record of the 
opinions rendered in connection with decisions and deter- 
mined the authority of such opinions. An opinion which was 
generally regarded by them as unsound was promptly over- 
ruled. Only the opinions which they approved (sententiae 
receptae) possessed legal authority. These jurists also de- 
vised forms of legal acts, and through their control, of judg- 
ments they secured the recognition of the forms which they 
had devised. That they were actually the makers of the old 
Roman civil law was fully recognized by their successors, the 
imperial jurists. That they exercised this law-making power, 
however, only through their control of decisions is self- 
evident. 

The earliest compilations of Roman and of Germanic 
customary law —the Twelve Tables, the Leges of the dif- 
ferent German tribes, and the Dooms of the Anglo-Saxons 
— are statements of the legal tradition established by de- 


40 The position which the jurists held at Rome was very different from 
that of modern lawyers; they did not plead cases (this was left to the 
orators), and they gave legal advice gratuitously. Im a sense, they were 
rewarded by the community at large, for their services recommended them 
to political office. 


Customary Law 293 


cisions. In the Twelve Tables — which, although a thou- 
sand years older than the German Leges, represent appreci- 
ably later law —the digesting of decisions into rules has 
gone so far that the abstract, imperative form of statement 
predominates; but even in the Twelve Tables we find many 
rules stated in the conditional form which is proper to case- 
law. We find a conditional clause setting forth facts, 
and a concluding clause laying down the rule.** In the Ger- 
man Leges the casuistic, conditional form is much more 
general. Some of the Leges are little more than collections of | 
‘““wisdoms,” 7.e., of answers given to specific questions by the 
regular law-finders. In the composition of these Leges we 
find king, wise men and people playing precisely the same 
parts as in an ordinary judgment: the wise men stated the 
law at the king’s request, the king submitted the state- 
ment to the people, and the people give their “ full word” 
or approval.” 

The imperfect differentiation of law-finding and law- 
making, which we have noted in early society, persists even 
when law has emerged from its archaic stage. The Latin 
tus like the Spanish fuero designates both the court and the 
law. Among the Germans, as we have seen, a proposed law, 
like a proposed judgment, is a “wisdom.” The Anglo- 
Saxon termed both laws and proposals “dooms.” ‘There is 
also much resemblance between the forms of judgment and 
those of legislation. In early German legislation, as we have 
seen, the same persons, king, advisers, and people, act in the 
same way as in rendering judgments.** In the Roman popular 
assembly, acting as centuries, later in the English Parlia- 
ment, we find, conversely, that the machinery and procedure 
of legislation were employed to secure the condemnation or 


41 Fig., viii, 12: ‘If he has committed theft by night, and if he has slain 
him, let him be (regarded as) rightfully slain; ” and viii, 24: “if he has let 
the javelin slip from his hand rather than hurled it, let him supply a ram 
(for sacrifice) .” 

42 Brunner, Deutsche Rechtsgeschichte, vol i, p. 110. 

43 In the old High German glosses, “ eosago”’ (law-speaker) is some- 
times translated ‘legislator’? and sometimes “ iudex.” Brunner, op. cit., 
vol. i, p. 150, n. 33. The scabini of the Carolingian period were also described 
as “legum latores.” Jbid., vol ii, p. 224. 


204 Customary Law 


acquittal of the person charged with crime (irrogatio poenae, 
bill of attainder). The early German relation between the 
two is probably the more primitive. Probably there were 
judgments before there was legislation, and the earliest legis- 
lation which was not purely declaratory was essentially a 
judgment rendered in advance on a question which seemed 
likely to arise frequently in the future. In early legislation 
another idea is indeed discernible, the idea of compact or 
agreement.** It is, however, not improbable that the same 
idea underlies the earliest termination of controversies by 
judgments. 

Before going further, two questions should be answered. 
First, in what sense is such early law as we have been ex- 
amining popular? The adjective may be used in either of 
two senses. It may be used to indicate that the law really 
proceeded from the people as such, or to indicate that the 
agencies which produced it were popular as distinguished 
from governmental. Early legislation, among both the 
Romans and the Germans, involved indeed the codperation of 
the people, but the only direct influence which the people 
could exercise was negative. They had no initiative, no power 
of amendment; they had simply to say yes or no. They could 
prevent legislation, but they could not frame it or directly in- 
fluence its framing. As regards the far more important mass 
of law which was established and developed by judgments, 
the German people played the same negative part as in legis- 
lation; while the Roman people, except in criminal proce- 
dure, played no part at all. Neither the written nor the un- 
written law, then, proceeded from the people as such. When, 
however, we inquire whether the agencies that really pro- 
duced the law were or were not governmental, we must dis- 
tinguish. In Roman legislation the formulation of a bill 
seems to have been purely governmental: there is no evidence 


44 Some of the German Leges are described as “pacts”; others begin 
‘it is agreed.” The Roman jurists always based the force of law on the 
consent of the people; and the Roman form of legislation, like the old 
eye was contractual; the king or magistrate proposed, the people as- 
sented. 


Customary Law 295 


that Roman jurists were asked to propose rogations, as the 
German wise men were asked to suggest wisdoms or dooms. 
Among both peoples, however, the formulation of judg- 
ments, as far as any question of law was involved, was 
non-governmental. The real makers of early German law 
as of early Roman law, as far as these systems were de- 
veloped by judgments, were the experts, the wise men, the 
jurists; and these were not governmental agents. The term 
popular, in the sense of non-governmental, may therefore be 
applied both to the legal customs of our German ancestors 
and to the unwritten law of the Roman Republic. 

The second question is whether this early law which we 
have been examining, in so far as it was developed not by 
legislation but by judgments, can fairly be termed customary. 
It is generally recognized that the law set forth in the Twelve 
Tables, like that embodied in the German Leges, was of this 
character; but the law that was developed at Rome between 
the publication of the Tables and the reform of the civil 
law by the pretors is not usually described as customary 
law. In the Roman official theory, indeed, all the jurist- 
law of the republican period was merely interpretation of 
the Tables. This theory was strained nearly to the breaking 
point, as similar theories have often been strained in later 
times; but it was persistently maintained until the imperial 
period. 

Postponing for the present the general question of the rela- 
tion of interpretation to law-making, we need only observe 
that in Rome, before the close of the republican period, the 
civil law had attained dimensions very disproportionate to 
the basis on which it nominally rested; that this development 
had been accomplished by the responses or decisions of the 
jurists; that no single response or decision was regarded as 
law, except as it was received as correct by the general opin- 
ion of the profession and was followed in actual judgments. 
It was, then, by the custom of the law-finders that the Roman 
civil law was built up, just as German custom was built up 
centuries later; and it is not easy to see why German tribal 


296 Customary Law 


law should be termed customary while the appellation is 
withheld from Roman city law. 


II 


In a preceding article * it was asserted that customary law, 
as distinguished from mere usage, has always been developed 
by decisions, and that decisions have always been determined 
by a relatively small number of persons. In the earlier 
stages of legal development decisions may indeed be ren- 
dered, apparently, by the entire community. The people 
must at least acquiesce in a proposed decision; and they must 
often lend active aid to make the decision effective. The 
attitude of the community, however, even in the earliest 
periods, seems to be determined by a few law-finders; at 
least, these law-finders determine the form and scope of 
each decision; and it is by their persistent custom that the 
rules of early law are determined. Among the Romans and 
among the Germanic peoples the earliest law-finders seem to 
have been priests. In the Roman Republic the law-finding 
power of the priests passed to secular jurists; in the Ger- 
manic tribes, after their conversion to Christianity, it passed 
to secular law-speakers. Neither Roman jurists nor Ger- 
manic law-speakers rendered judgments which were im- 
mediately capable of execution; but the Roman zudices and 
the German folk-moots regularly took their law from these 
law-finders. Law-finding was ‘‘ popular” only in the sense 
that it was not yet governmental. 

In the Frankish Empire there was a tendency, even in 
the popular courts, towards governmental law-finding. The 
Frankish counts apparently selected the “ advisers” (ra- 
chineburgi) who proposed the judgments,*° and in the Frank- 
ish and Franco-Roman territories of his empire, Charles the 
Great caused permanent judgment finders (scabinz) to be ap- 
pointed — not more, apparently, than a dozen to a county.” 
With this change, the law-finding became in a sense govern- 


45 Supra, pp. 289, 290. 47 [bid., vol. ii, p. 223. 
46 Brunner, Doubtehe Rechtsgeschichte, vol. i, p. 150. 


Customary Law 297 


mental, since the law-finders no longer became such by 
virtue of general opinion and by a sort of natural selection, 
but were governmental appointees. After the disruption 
of the Frankish Empire, however, the office of scabinus was 
regularly associated with a particular estate or holding, and 
conditions arose which will be discussed later under the head 
of local and class custom. 


ENGLISH CoMMON LAW 


In England, thanks to the Norman Conquest, the ad- 
ministration of justice was centralized at a far earlier period 
than on the Continent; but justice was not, and is not to-day 
in any English-speaking country, so completely governmen- 
talized, if the expression may be permitted, as in the Roman 
Empire or in the modern states of Continental Europe. Al- 
most simultaneously with the establishment and organiza- 
tion of the English royal courts there developed a new form 
of popular codperation. Out of the Carolingian inquest 
grew the Norman jury of proof and, finally, the English 
jury of verdict. In criminal cases, as has been well settled 
since the reign of Charles II, the jury is judge of the law as 
well as the facts; 7.e., law-finding is or may be non-govern- 
mental. In civil cases, on the other hand, the jury has the- 
oretically no voice in finding the law. It must take the law 
from the judge, and if it fails to do so its verdict may be set 
aside. Since, however, verdicts are set aside only in extreme 
cases, the decisions of civil juries may largely affect the prac- 
tical working of the law. On the whole, however, the instruc- 
tion or charge of the judge is decisive as far as questions of 
law are concerned, not merely in civil but also in criminal 
cases. It should be noted, further, that the verdicts of juries 
have never been regarded as precedents in England any more 
than the decisions of zudices were regarded as precedents 
at Rome. The instructions which the judges give to the 
juries, and which are approved by the court of highest in- 
stance, are alone regarded as establishing precedents, just 


298 : Customary Law 


as the opinions expressed by the Roman jurists and ap- 
proved by the general opinion of their fellows constituted 
the only precedents recognized in Roman law. Hobbes was 
quite right when he asserted that the English royal judges 
were jurisconsults rather than judges. That the English royal 
courts made the English common law is a fact seldom seri- 
ously questioned. ‘The orthodox judicial theory, indeed, has 
always affirmed the contrary. The English judges have 
always affirmed that they were not making law but finding it 
by “interpretation.” They began by interpreting Saxon and 
Norman customs; they went on by interpreting the inter- 
pretation. When a rule could not be found elsewhere, it was 
sought in the nature of the case or in natural reason or in 
the general principles of jurisprudence or even in the Roman 
law; but however far afield the courts went in their search, 
and however great the range of selection which they gave 
themselves, the rule which they applied was in theory always 
found and not made. The making of law belonged to Parlia- 
ment. This theory is not, however, now taken very seriously 
even by the courts, and English and American writers gen- 
erally discard it. The facts that English common law has 
never had any existence except in decisions; that by decisions 
it has been developed in historical times from scanty begin- 
nings into a great and complex system; that by decisions its 
rules have continually been modified and frequently over- 
ruled, — these facts have been more cogent to the average 
mind than any official theory. Although English common law 
has frequently been styled “‘ the custom of the realm ” ** it is 
not now usual to call it customary law. It has always rested, 
however, like all the customary or unwritten law we have 
been examining, upon the persistent practice or custom of 
the law-finders. 

It is, however, frequently asserted, by those who frankly 
recognize the law-making power of judicial decisions, that 
each decision in which an old rule is modified or a new rule 
is laid down makes law; that it is not the current of decisions 


48 Cf. Pollock, First Book of Jurisprudence, pp. 239-243. 


Customary Law 299 


or judicial practice that determines unwritten law any more 
than it is legislative practice that determines the written law. 
Under this theory, of course, English common law could not 
properly be termed customary law. The discussion of this 
point will be deferred until we come to consider the general 
relation that exists between law and the interpretation of 
law. 


OFFICIAL LAw or Eouity 


The Roman distinction between citizen’s law (ius civile) 
and official law (7us honorarium) and the equivalent German 
distinction between Volksrecht and Amtsrecht do not cor- 
respond with the distinction which I have attempted to draw 
between non-governmental and governmental law-finding. 
The substitution of governmental for popular agencies in 
ordinary law-finding usually involves no abrupt breach with 
the past. The Roman imperial courts, the English royal 
courts and the courts of modern continental: Europe sever- 
ally took up the work of law-finding at the point to which 
popular agencies had carried it, and developed new law as 
the popular law-finders had done by interpreting the older 
law. What is meant by “ official’? law or “ equity ” is the 
law produced by governmental agencies not exclusively nor, 
indeed, primarily judicial — agencies which set themselves 
above the previously existing law and not merely supple- 
ment but override it. Such agencies are never regarded at 
the outset as having either law-making or law-finding power; 
but the body of rules which they persistently enforce come 
ultimately to be regarded as law. Such agencies were the 
Roman pretors; the Frankish kings, acting through their 
counts palatine and their missz; and the English kings, acting 
through their chancellors. 

Superficially there was a difference between the way in 
which the Roman pretors made law and that in which the 
English chancellors made it. The pretors used the quasi- 
legislative form of ordinance or “edict”; the chancellors de- 
veloped new rules as law-finders develop them, by deci- 


300 Customary Law 


sions. ‘The Frankish kings used both methods; they made 
new rules by ordinance, and they found new rules of equity 
in the king’s court. When, however, we examine the edicts 
of the Roman pretors and consider how their provisions 
were applied, the difference almost disappears. ‘The duties 
of the Roman pretor were in the main judicial: it was 
his chief business to arrange for the termination of private 
controversies. The edict which each pretor set up at the 
beginning of his year of office was not a series of com- 
mands, but a programme. In it he promised certain 
remedies and indicated under what circumstances each 
remedy should be given. This programme was carried 
out by means of formulas sent to the zudices. The formula. 
was a command: if the zudex found certain allegations of 
the plaintiff to be true, and did not find certain other alle- 
gations of the defendant to be true, he was commanded to 
render a certain decision. ‘The English chancellor decided 
cases as he saw fit; the Roman pretor caused cases to be de- 
cided as he saw fit. A new rule worked out in chancery was 
first disclosed in the decision of the special case which sug- 
gested it, and any modification of the rule was subsequently 
revealed in the same way. Any new rules which the pretor 
intended to enforce, and any modifications which he intended 
to make in the rules laid down by his predecessors, were an- 
nounced in advance. Fundamentally, these two methods of 
making law are identical; and they both resemble law-finding 
rather than legislation. The rules laid down were suggested 
by actual controversies, and were amended as new contro- 
versies afforded new points of view. In form the Roman 
process was more considerate. The complaint of the Eng- 
lish common lawyer, that equity was administered accord- 
ing to the length of the chancellor’s foot, would have lost 
much of its force if the length of the foot had been indicated 
in advance. 

The similarities in the three movements — the Roman, the 
Frankish and the English — are more striking than any such 
formal differences. At the outset neither Roman pretor nor 


Customary Law 301 


Frankish king nor English chancellor was held to be capable 
of making or finding “ law ” or of creating new rights. Each, 
however, could issue orders and enforce them in personam 
by fine or imprisonment. Each was therefore able to impose 
new sanctions and to create new remedies; and eventually it 
was admitted that where there was a sanction there must be 
a legal rule, and where there was a remedy there must be a 
right. 

Under each of these systems the new law-finding was more 
purely governmental than the ordinary law-finding which it 
overrode. The Roman pretor, whenever it was necessary 
for his purpose, reduced the zudices to the position of English 
civil jurors; 7.e., he laid down the rule to be applied, provided 
the facts were as stated, and the zudices had nothing to do 
but to determine the question of fact. In the administration 
of equitable justice in the court of the Frankish king, and in 
the courts of the king’s missi, the judgments were found in 
traditional fashion by representatives of the freemen; but 
these representatives, at the king’s court, were usually offi- 
cers of the royal household, and in the missatic courts they 
were scabini appointed by the counts. The influence exer- 
cised by the king and his count palatine and his missz upon 
these judgment-finders must have been very great, because 
the pleadings, the evidence and the judgment were not gov- 
erned by folk-law, with which they were familiar, but by 
king’s law. In English proceedings in equity there is, of 
course, no jury; the judges determine the facts as well as the 
law. 

The rules laid down in the edicts of the prztors and those 
expressed or implied in English decisions in equity became 
law by force of custom. The custom that converted them 
into law was not popular, for the people had no more to do 
with these movements than the Russian people have to do 
with the ukases of the czar. The custom was governmental. 
It was by the iteration of the same rules in successive pre- 
torian edicts (edicta tralaticia) that the Roman ius hono- 
rarium was built up. It was by the observance of precedents 


302 Customary Law 


and the development of a settled practice that English equity 
came ito be a constituent part of English law. In the same 
way Frankish ordinances and Frankish equity were becom- 
ing law when the process was interrupted by the disruption 
of the Carolingian empire.” 


RoMAN IMPERIAL LAw 


Ordinary, as distinguished from equitable, law-finding was 
first governmentalized at Rome in the imperial period. At 
the close of the republican period, civil judgments were ren- 
dered by zudices: under instructions from the praetor when 
the new rules of pretorian law were to be applied; without 
instructions, when the old civil law was to govern the de- 
cision. The zudices were popular, not governmental officers; 
they were selected in each case from a panel of citizens of 
rank and wealth. Law was actually found, however, neither 
by the pretors nor by the zudices; the instructions or for- 
mulas issued by the pretors and, as far as legal questions were 
involved, the decisions of the iudices were actually shaped 
and controlled by the jurists, and these were in no sense gov- 
ernmental agents. The criminal jurisdiction of the Roman — 
assembly was transferred, towards the close of the republican 
period, to new criminal courts, the guestiones; but in these 
courts also, verdicts were rendered by citizen iudices. 

Under the empire law-finding gradually became altogether 
governmental. The first step in this direction was taken 
when the jurists became representatives and agents of the 
emperors. This change was effected by conferring upon the 
leading jurists a “right of responding,’ and by directing 
the zudices to follow the legal opinions given by such jurists. 
The opinions of these “ patented ” jurists (to use Muirhead’s 
phrase) now possessed legal authority; and the opinions of 
other jurists soon lost even the moral authority which they 


£9 In the development of king’s law as in that of folk-law, says Brunner, 
“it was repeated and uniform application, 7.e., custom (Gewohnheit) which 

. Showed ... that a true legal rule (etm wirklicher Rechtssatz) had 
come into existence.” Deutsche Rechtsgeschichte, vol. i, p. 277. 


Customary Law 303 


had previously enjoyed. The next step was to establish new 
courts, civil and criminal, in which imperial officials heard the 
pleadings and the evidence and rendered the decisions 
(tudicia extraordinaria). The last step was to transform the 
surviving courts of the older type (the pretorian courts) into 
purely governmental courts. This change was initiated by 
substituting for the independent citizen iudices subaltern 
officers of the court itself —an innovation which seems to 
have been welcomed by the citizens, since it relieved them 
from duties which they felt to be onerous and desired to 
escape —and completed by making it optional with the 
magistrate, in each case, whether he should try the case him- 
self or delegate its trial to one of these subaltern zudices 
(tudices pedanei). When these changes had been made the 
magistrates became judges in the modern sense. 

In proportion as law-finding was governmentalized, it was 
also centralized. From the decisions of independent citizen 
tudices appeals had never been admitted. From the decisions 
of imperial officials appeals ran to the emperor, or to such 
higher officials as he might designate. The emperor had also, 
as supreme magistrate of the commonwealth, a general orig- 
inal jurisdiction. In fact, his original jurisdiction appeared 
earlier and developed more rapidly than his appellate juris- 
diction. Any case could be brought before him in first 
instance, and he might either decide it himself, by a decree, 
or delegate its decision, by rescript, to the ordinary court 
or to a special court. In case of delegation it was usual, if 
a doubtful or novel question of law was involved, to state 
the rule to be applied, assuming the facts to be as repre- 
sented. 

The imperial decisions, whether rendered in first instance 
or on appeal, were formulated in the imperial council (audi- 
torium), which was thus the supreme court of the Empire. 
At a later period the emperor’s appellate jurisdiction was 
transferred to imperial prefects. 

In connection with these changes, all the more important 
offices of a judicial character came to be filled by the 


304 Customary Law 


patented jurists. The jurists of the republic had been the 
extra-legal counsellors of the magistrates and of the zudices. 
Those of the first century of the Christian era were the 
authorized counsellors of the zudices, of the magistrates 
and of the emperor. In the republic and under the first 
emperors the jurists might occasionally act as tudices, and 
they frequently became magistrates; but their control over 
law-finding, although practically complete, was for the most 
part indirect. The great jurists of the second and third 
centuries were judges in the modern sense; °° and it was 
by their direct activity, z.e., by their decisions, and particu- 
larly by the decisions reached in the imperial council, 
that the law of the empire was chiefly developed. Their 
decisions were reported and digested in their writings. Their 
commentaries were, for the most part, digests of case-law; 
their books of ‘‘ questions” and “responses” were, as the 
names imply, collections of cases. To treat all the juristic 
literature of the empire as “ scientific law ” or “‘ legal theory,” 
which became law only by popular or professional recogni- 
tion and use, is to misrepresent its character and its author- 
ity. 

By the decisions of the imperial jurist-judges, and in the 
literature in which these decisions were preserved, all the 
results of the preceding legal development were fused and 
harmonized; so that, in the fourth and fifth centuries, neither 
the Twelve Tables nor the subsequent republican legisla- 
tion nor the prztorian edict nor the decrees of the senate 
were cited, except as interpreted in the juristic literature, 
i.e., by the judicial practice of the early empire. This was 
the ius or common law of the late empire. It is not usual 


50 From the close of the first century to the middle of the third, all 
the principal jurists whose writings were or came to be regarded as authori- 
tative (except Pomponius and Gaius, who were probably teachers of law, 
and Africanus, of whose career we know nothing) were members of the 
imperial council, z.e., of the supreme court of the empire. Some of them 
held other positions of which the duties were wholly or partly judicial, such 
as praetor, praefectus urbi, and proconsul. Papinian, Paul and Ulpian, ex- 
tracts from whose writings constitute about five-ninths of the Digest of 
Justinian, were successively praefecti praetorio, i.e., chief justices of the 
empire. 


Customary Law 305 


to call it customary law, nor did the Romans call it unwrit- 
ten law; ** but it was judge-made law, and, like the “ inter- 
pretation ” of the republican jurists, it represented the per- 
sistent custom of the law-finders. 

During the early empire there was relatively little direct 
legislation. What there was took the form, for the most part, 
of senatus consulta. The emperor had the power of issuing 
ordinances (edicta, mandata) but he was not at first re- 
garded as having legislative power; and the imperial de- 
crees and rescripts, to which legislative authority was ul- 
timately ascribed, were, as we have seen, neither laws nor 
ordinances, but decisions. After the middle of the third cen- 
tury, when the production of juristic literature ceased, it is 
often assumed that all legal change was made by direct legis- 
lation. As late as the beginning of the fourth century, how- 
ever, the law was still developing largely by decisions. The 
imperial rescripts dating from the later part of the third 
and the early part of the fourth centuries, which constitute 
so large a part of Justinian’s Codex, are case-law and, for 
the most part, very good case-law. It was not until the 
fourth century that the emperors began to declare that the 
rescripts issued in single cases were not to be regarded as 
establishing general rules.°* ‘Then, indeed, legislation be- 
came almost the sole factor of legal development. The 
change was not the result of a normal evolution but a symp- 
tom of degeneration. Decisions ceased to be regarded be- 
cause jurisprudence had sunk to so low an ebb that they 
were not worth regarding.” 

The older case law, however, stood in undiminished honor 
and authority. Much of it was saved in Justinian’s Digest, 
some of it in his Codex. Only in this part of the compila- 


51 Gaius, Institutes, vol. i, p. 2, catalogues the prudentium responsa 
under the head of the ius scriptum. 

52 Constantine: “ Contra ius rescripta non valeant: ” Cod. Theod., 1, 
2,c. 2. Arcadius: Cod. Theod., 1, 2, c. 11. Theodosius: Cod. LIust., 1, 14, 
c. 2. Anastasius: Cod. Iust., 1, 22, c. 6. Finally Justinian, with his famous 
“non exemplus sed legibus iudicandum”’: Cod. 7, 45, c. 13. 

53 So Kriiger, Rémische Rechtsquellen, p. 267. He lays stress also on 
the extent to which, as is evidenced by contemporary constitutions, deci- 
sions were procured by favor or by corruption. — 


306 Customary Law 


tion of Justinian were there seeds of life; and from the close 
of the eleventh century to the close of the nineteenth these 
seeds have yielded renewed and rich harvests. 


MEDIZVAL LAW, SECULAR AND ECCLESIASTICAL 


Through the middle ages there was, in the states of conti- 
nental Europe, no law-finding of the governmentalized and 
centralized type which had existed in the Roman empire. 
There were beginnings of such a development in the Frank- 
ish empire, not only in the king’s courts but also in the 
county courts; but after the dissolution of that empire law- 
finding became popular again and particularistic. The ar- 
rested development of Germanic law and the degradation of 
such Roman law as survived to the plane of crude local 
custom, were due in the main probably to the independence 
of the local courts and the absence of any controlling central 
instance in the feeble feudal kingdoms; but these results 
were also due in part to the character of the law-finders. 
The old Germanic law-speakers, like the jurists of the Roman 
republic, were produced by a process of natural selection. 
They held their unofficial position by virtue of their recog- 
nized knowledge of the law and skill in adapting it-to new 
exigencies. When Charles the Great instituted the scabznz, 
it is not unlikely that his counts selected as a rule men who 
had been law-speakers or “‘ advisers.” In a sense the change 
was analogous to that which Augustus introduced when he 
“patented” the recognized jurists. But when, after the 
dissolution of the Frankish empire, the office of scabinus, 
like every other secular office, became associated with the 
holding of land and passed with the land by inheritance, law- 
finding passed into the hands of men who were not neces- 
sarily fit and who often were conspicuously unfit. The 
contempt which the civil doctors of the twelfth and follow- 
ing centuries expressed for customary law was not un- 
founded. Much of it was what they called it, “asinine ” 
law, because it had been developed by ‘‘ men lacking reason.” 


Customary Law 307 


This was one of the reasons why national law, in its medizval 
form of local usage, offered, upon the continent, so little re- 
sistance to the invasion of the renascent Roman law at the 
close of the middle ages. It was largely because national 
law on the continent had not developed as, in England, its 
own learned judiciary, that the civil doctors captured the 
new courts which were established by the absolute mon- 
archy at the close of the middle ages, and carried Roman law 
into parts of Europe which had never been subject to Roman 
authority and in which there was practically no Romanic 
population. 

When we turn from the rude secular states of the middle 
ages to their great ecclesiastical state, the Roman Church, 
and examine the legislative and judicial manner by which 
the canon law was developed, we feel ourselves in another 
age. From the point of view of legal development the differ- 
ence between the secular and the ecclesiastical courts of the 
middle ages was as great as the difference between the courts 
of Saxon Alfred’s time and those of English Elizabeth’s 
time. In fact, the ecclesiastical courts perpetuated the judi- 
cial organization of the late Roman Empire and furnished 
‘a model for the European continental courts of modern 
times. Law-finding in the church was wholly sacerdotal.”* 
The decision rested in the first place with the bishop as zudex 
ordinarius °° and in the last instance with the pope. Any 
case, however, could be carried to Rome, not only on appeal 
but in first instance, for the pope was universal ordinary 
and had a jurisdiction concurrent with that of every bishop. 
When a case came before the pope he might either decide 
it himself or refer it, and he might refer it either to the or- 
dinary judge of the diocese in which it properly belonged, or 
to a special delegate. In case of reference or delegation, he 
was likely, if a legal point of any difficulty was involved, to 


54 Popular coéperation in finding the judgment was illegal. Any local 
custom of the sort was invalid. Decretal. Greg. 1X, i, iv, c. iii. 
~ 55 The bishop decided, regularly after hearing the advice of his Chapter; 
but a local custom which permitted him to decide without hearing the advice 
of the Chapter was valid. Sexti, Decretal., i, iv, c. iii. 


308 Customary Law 


send instructions as to the law to be applied, supposing the 
facts to be as represented. °° All this was in accordance with 
Roman imperial law and usage. | 
Like the Roman emperors, the popes had legislative power, 
and their decretals might be acts of pure legislation; but the 
greater number of the decretals were like the imperial pre- 
scriptions, — decisions on questions of law based on actual 
cases submitted. In examining the corpus iuris canonici, 
one is struck with the predominance of the casuistic element. 
Like the Digest of Justinian, and that part of Justinian’s 
Codex which consists of prescriptions, the body of the canon 
law is largely a compilation of case law. It is unusual to call 
the codified canon law, or any part of it, customary law; 
but the part that rested on judgments was developed in pri- 
marily the same manner in which customary law always de- 
velops, viz., by the persistent usage of the law-finders. 


When the modern states of continental Europe began to 
emerge from the political confusion of the middle ages, 
the princes took into their hands the administration of justice 
and gradually built up courts of the modern European type. 
The change was generally accomplished by pouring new 
wine into the old bottles, — by associating with the un- 
learned law-finders, whether these were nobles, citizens or 
peasants, new law-finders learned in Roman laws, civil and 
canon. The introduction of these learned judges was the 
result of a general conviction that the law of Justinian was 
living law; and it was also the chief cause of the effective 
reception of that law. At the same time, the traditional 
right of the king to do justice was made effective by drawing 
appeals from the local and provincial courts to the king’s 
court, which ceased to be simply a feudal court of the chief 
vassals and became, in part or wholly, a learned court 

56 When we speak of the bishop or pope as finding the law, it is in the 
same sense in which we speak of the Roman emperor or the Roman president 
of a province as a law-finder. In fact, the bishop’s judicial authority was 
regularly exercised by a trained canonist,— his surrogate (subrogatus), and 


papal decisions were regularly rendered by a council or court of trained 
canonists. The church had developed its own juristic class. 


Customary Law 309 


of appeal or of cassation. Gradually, of course, the learned 
element in all these courts displaced the popular element, 
and no new representation of the people was introduced un- 
til in the eighteenth and nineteenth centuries, jury trial in 
criminal cases was borrowed from England. 

It is not generally recognized on the continent, even to- 
day, that these new courts made new law. Even in Spain 
and France, where law-finding was first centralized, the cen- 
tralization came too late to enable the early courts to de- 
velop uniform national law. In Germany and Italy no such 
centralization was attained until the nineteenth century; 
all that was accomplished earlier was the establishment of 
courts of the new type in single German and Italian terri- 
tories. In theory, the new royal and princely courts applied, 
in the first instance, existing local and territorial laws 
and customs, and in the second instance, the Roman civil 
law with the changes introduced by the canon law. In 
fact, however, the effective reception of the Roman civil 
law, wherever it took place, was accomplished by the 
persistent custom of the new learned courts; much es- 
tablished custom was destroyed by their persistent refusal to 
recognize and enforce it; and many new developments were 
attained, on the one hand by reinterpretation of territorial 
and local customs, and on the other hand by reinterpreta- 
tion of the case law of Justinian’s Digest. Broadly speaking, 
the practice of the new learned courts was, from the close 
of the middle ages until the end of the seventeenth century 
when legislation began to flow more freely, the chief agency 
by which continental law was recast. 


VII 
PROBLEMS OF ROMAN LEGAL HISTORY * 


To attempt to recapitulate within the limits of a single 
paper the unsolved problems of Roman legal history would 
be an absurdity. Such an undertaking would make it neces- 
sary for us to follow the development of the Roman law 
from the Twelve Tables to Justinian’s law books in order 
to indicate what portions of this millenial movement are 
still obscure. Even then the survey would be incomplete, 
since the history of the Roman law neither begins with the 
Twelve Tables nor ends with Justinian. It begins at that 
unknown date when Rome began and it has not ended 
yet. 

To select a narrower period and to single out what seem 
the more important problems would be more feasible; but 
the mere enumeration of difficulties would be neither inter- 
esting nor profitable. 

The best excuse for a paper on the problems of any 
science is the writer’s conviction or hope that he may be 
able to make some contribution towards their solution, if it 
be only by suggesting unworked lines of investigation which 
appear to him to promise useful results. It is my belief 
that for the most important period of Roman legal history 
—the period in which the ancient Roman law, public and 
private, reached its highest development, and which ex- 
tends, roughly speaking, from the middle of the third century 
before Christ to the middle of the third century after Christ 
— there is a promising method of investigation or line of 
approach which as yet has been scantily utilized. The 
method which I advocate is that of comparison; and the 
comparison which I suggest is with Anglo-American legal 

1 Read before the Congress of Arts and Sciences, St. Louis, September 21, 


1904. Reprinted from Columbia Law Review, vol. 4, no. 8, December, 1904, 
Pp. 523-540. 


Problems of Roman Legal History 311 


development from the twelfth century to the present 
dave t. 

The older lines of investigation appear to be worked 
out. It does not seem likely that new material of impor- 
tance will be discovered; we can hardly hope for a second 
find like the fourth book of the Institutes of Gaius; and all 
direct methods of interpreting the existing sources have 
been so diligently and ably exploited by European jurists, 
from Cujacius to Mommsen and Lenel, that every student 
of the Roman law now has the instinctive feeling that a new 
interpretation is probably a very doubtful interpretation. 

The usefulness and the limitations of the comparative 
method of studying legal history perhaps need more accu- 
rate definition than they have yet received. The assump- 
tion with which comparative jurisprudence starts, is the 
essential identity of human nature everywhere. The infer- 
ence is that social developments among the most different 
peoples would be identical if all had reached the same stage 
of development and were living under identical conditions. 
In this last qualification we have the first and most impor- 
tant limitation upon the comparative method. Conditions 
are never identical; they are at most broadly similar. The 
working hypothesis, accordingly, on which comparative 
jurisprudence proceeds, is that peoples in corresponding 
stages of social development are likely to approach legal 
problems from similar points of view and to attempt their 
solution on similar lines. The inference is that a fully known 
development in one nation may help us to interpret a 
partly known development in another nation. Proceeding 
with proper caution, we may even fill gaps in the historic 
record of one system by searching for the intermediate 
links in a similar chain of development in another system. 
Such reconstructions, it is needless to say, will seldom be 
indisputable, but they will be more nearly correct than the 
products of the historical imagination. 

Another limitation upon the comparative method, as an 
agency in historic reconstruction, is found in the fact that 


a2 Problems of Roman Legal History 


different legal systems do not develop in absolute isolation. 
The history of human law, as of all civilization, is largely a 
history of borrowings. I think, however, that this limita- 
tion is fully appreciated by students, and that there is at the 
present time little danger that it will be disregarded. The 
tendency of historical jurisprudence now, as in the past, is 
rather to exaggerate than to overlook the borrowed ele- 
ments in each legal development. Because the Romans 
had certain institutions which were not primitive and which 
resembled Greek institutions, and because similar institu- 
tions existed at a still earlier date in Egypt and in Babylon, 
there has been over-readiness among students to assume, 
without sufficient evidence, a series of imitations and an un- 
broken chain of derivations. A similar process of reason- 
ing has attributed to Roman sources not a few English 
institutions which on closer investigation appear to be inde- 
pendent products, as truly English as they were truly Roman 
or, to put it more accurately, neither English nor Roman 
but human. Their similarity is due to the similar working 
of the legal mind under analogous conditions. 

It may, however, be granted that the comparative 
method must be used with caution, that the movements 
compared must be intrinsically comparable, and that allow- 
ance must be made for possible borrowings. 

Given these limitations, it is not surprising that com- 
parative study of legal institutions for purely scientific pur- 
poses has thus far been confined practically to the field of 
early law. There has been greater safety here, because 
the conditions of social existence are more uniform among 
barbarous peoples than among civilized nations, and be- © 
cause there is less chance of imitation of foreign customs. 

In this part of the field, the application of the compara- 
tive method to the problems of Roman legal history has 
already yielded valuable results. The comparative study 
of early law in general has thrown light into many corners 
which were hopelessly dark to the later Romans themselves. 
“Not for all things established by our ancestors,” wrote 


Problems of Roman Legal History ne 


Julian, “can a reason be assigned ”; but for quite a number 
of these things we are now able to assign reasons that are 
not merely plausible but convincing. 

To the later and more important stages of Roman legal 
development — to the public law of the later Republic, and 
to the civil and pretorian law of the later Republic and of 
the early Empire — the comparative method has not been 
applied, or it has been applied sporadically only and with 
little result. The reason is very simple. The jurists of con- 
tinental Europe have rightly felt that the other and more 
modern legal systems with which they are acquainted are 
not available for comparison. As regards public law, they 
have been living under absolute monarchies or under con- 
stitutional monarchies in which the monarch is still a real 
force. They have had no personal and vital acquaintance 
with republican government conducted on a large scale 
and maintained for a long period —no such experience as 
Englishmen have had, in substance, for two centuries and 
Americans, in form and in substance both, for more than a 
century. As far as popular participation in national govern- 
ment has been introduced in the larger European states, 
it has been borrowed from England and adapted to conti- 
nental conditions. As regards private law, the continental 
European jurists have had personal and vital acquaintance 
with only two systems — the remnants of the old Germanic 
law, a law arrested in its development in the tenth century, 
and the law of the later Roman Empire, which at the close 
of the middle ages they borrowed en bloc and which they 
have since been modifying and assimilating. The only Ger- 
manic system which has had an unimpeded and continuous 
development, the only modern system which has an independ- 
ent history comparable in its duration with that of the 
Roman law, is to them almost a closed book. On the other 
hand, the English, who have the data for comparison, have 
done little serious work in the field of Roman legal history, 
and the best of that work has been done in the field of Roman 
public law. In the field of private law they have relied on 


314 Problems of Roman Legal History 


French and German writers, not only for the historic facts 
but for the interpretation of the facts. 

But, it will be asked, are the modern Anglo-American 
and the ancient Roman legal systems fairly comparable 
quantities? Are there such broad analogies in their gen- 
eral development as to warrant the hope that a minute 
study of the one will be serviceable in interpreting the 
other? I grant the differences; they are sufficiently obvi- 
ous; but I insist on fundamental although less obvious 
analogies. 

‘ 

The constitution of the Roman Republic was substan- 
tially an unwritten law, as is the English constitution. It 
consisted of precedents, 7.e., adjustments reached in the 
political field at the close of political conflicts. Of those 
adjustments a part, but only a part, was incorporated in 
declaratory statutes. In establishing their Republic, the 
Romans retained their ancient elective kingship for cere- 
monial purposes, housing the King of the Sacra in the old 
royal palace and treating him as head, or rather as figure- 
head, of their state church. The real powers of the king- 
ship they entrusted to officials elected by political parties. 
The English have retained a less shadowy kingship, but 
they have similarly transferred the most important powers 
of the crown to a small body of officials who represent the 
dominant party in an elective assembly. 

The American constitution, on the other hand, is indeed 
a written one, but there has grown up beside it a body of 
authoritative precedents. The American executive has many 
points of resemblance, in time of peace, to a Roman consul; 
in time of war, to a Roman dictator. To the Romans, the 
chief change which occurred when the Republic was es- 
tablished was that the royal power was entrusted to magis- 
trates elected for short terms. Sir Henry Maine asserts that 
in their presidency the Americans have perpetuated the 
monarchy of George the Third. A witty Frenchman, M. 


Problems of Roman Legal History BUR 


Raoul Frary, tells us that England is now a-republic with 
an hereditary president, while the United States is a mon- 
archy with an elective king. The common element — and 
the fundamental element —in all three constitutions is the 
exercise of governmental power by men elected by party 
organizations. 

Great Britain, like Rome, has built up a world empire; 
and like Rome it has combined domestic liberty with external 
power by limiting governmental authority at home and per- 
mitting it to act freely abroad. The reserve powers of the 
British crown furnish the constitutional historian with an 
exact analogy to the war power (imperium militie) of the 
Roman consul. The viceroy or governor is the English 
equivalent of the Roman proconsul or propretor; and co- 
lonial affairs are controlled by the British Privy Council as 
_ provincial affairs were controlled by the Roman Senate. 
The influence of the Roman Senate made for continuity of 
policy, as does the influence of the Privy Council, and for 
the same reason. The Romans kept their ex-magistrates in 
the Senate as the British keep their ex-ministers in the Privy 
Council. So that the Senate, like the Privy Council, repre- 
sented the expert political experience of both political parties. 
As a matter of policy, Great Britain has conceded, as did 
Rome in the Republican and early Imperial periods, a large 
measure of local self-government to its subjects beyond the 
seas. In both empires we find the war power and the control 
of diplomatic relations in the hands of the home govern- 
ment, the ordinary administration decentralized and left in 
the hands of local authorities. 

The United States, after rounding out its continental 
domain, has recently acquired possessions beyond the seas. 
In dealing with them it is somewhat embarrassed by the 
absence from its written constitution of indefinite and gen- 
eral governmental power — power corresponding to the 
Roman military imperium or to the residuary authority of 
the British crown. This difficulty was felt a century ago 
when the process of continental expansion was beginning; 


316 Problems of Roman Legal History 


and each successive exigency has been met, and is being 
met, by the development in our unwritten constitution of 
the war powers of the American president. In the admin- 
istration of its earlier continental acquisitions, the United 
States, following the example of Rome and of Great Brit- 
ain, encouraged the development of local self-government; 
and it is following the same policy in its new insular de- 
pendencies. 

In the expansion of Great Britain and of the United 
States, as in the expansion of Rome, the fact of central in- 
terest is the upbuilding of empire by a free people; and in 
the British and American empires — if the insular depend- 
encies of the United States are to be dignified with so high- 
sounding a title as empire — the fundamental problem is the 
same which confronted the statesmen. of republican Rome, 
viz., the reconciliation of empire with liberty. 

One of the devices of Roman public law for limiting 
governmental power at home was an elaborate system of 
checks and balances. The power of almost every official 
was limited in its practical exercise by the independent and 
possibly opposing powers of other officials. In the hier- 
archy of superior and inferior officials which constitutes the 
administrative system of the modern continental European 
state, no such checks as these exist; but they are familiar 
to the English public lawyer, and they have been greatly 
multiplied in American constitutional law. 

The Anglo-American law protects private rights against 
governmental encroachments not in modern European but 
in Roman fashion. In the place of administrative control 
of the inferior by the superior, which is so highly developed 
in modern European law, the English and American law, 
like the Roman, has developed control through the ordinary 
courts. When, for example, a Roman edile destroyed mer- 
chandise which obstructed the public highway, the legiti- 
macy of his action was tested, at Rome, not by appeal to the 
consul, but by an action to recover damages for illegal de- 
struction of property, just as a similar exercise of police 


Problems of Roman Legal History ie, 


power would be tested in Great Britain or in the United 
States. 

It may finally be noted that contemporary political con- 
ditions in the United States help us rightly to understand 
the dramatic final century of the Roman Republic: When 
we cease to view that period through the eyes of European 
scholars, we shall recognize that its salient characteristic 
was the appearance on a magnificent scale of those political 
personages whom we call “ bosses”’; and we shall discover 
that the Latin word for boss was princeps. Princeps, Momm- 
sen tells us, was a word commonly used in the later Re- 
public to designate the most prominent citizens. The 
definition might be made more exact. The citizens who 
were designated as principes —men like Marius and Sulla 
and Pompey and Crassus and Julius Cassar — were promi- 
nent before all things in political management. They were 
the men who controlled the machinery of the senatorial and 
popular parties. The members of the first triumvirate, a 
body which an American politician would instinctively desig- 
‘nate as “The Big Three,’ were described by Cicero as 
principes. In our federal system of government we have 
not developed any boss whose authority reaches beyond 
the limits of a single state; we have no national bosses; and 
if we had them, our constitutional and administrative ar- 
rangements are such that even a national boss could not 
readily put himself at the head of a large mercenary army 
in New Mexico or in Alaska and upset the government by 
marching on Washington. ‘These variations, however, do 
not affect the substantial identity in political science of our 
boss and the Roman frinceps ; and this identification enables 
us to understand that the official theory of Augustus and 
of his immediate successors —the theory that the free 
commonwealth was still in existence— did not seem to 
the Roman public to be a fiction. Through his control of the 
army the boss had become a military dictator; but the 
forms of popular government were, for a time, sufficiently 
preserved to enable intelligent citizens to blink the change, 


318 Problems of Roman Legal History 


and to leave the majority of the citizens unconscious that 
any serious change had occurred. To them, Augustus was 
simply the boss raised to his highest terms. Consuls and 
pretors and all the other officers of republican government 
were elected on his nomination and the Senate was filled 
with his henchmen, but these were familiar accompani- 
ments of boss rule. From this point of view, we can fully 
understand Pliny’s remark, that the very men who were 
most averse to recognizing anything like lordship (domi- 
natio) had no objection to the authority of a princeps. 

Modern examples of the transformation of the party boss 
into the military monarch, with more or less careful main- 
tenance of the forms of popular government, are not far to 
seek, but we must seek them still in the Latin world. Eng- 
lish history offers no nearer parallel than the career of 
Cromwell; but Cromwell, although a party leader, was not 
a boss, and in the English Commonwealth the evolution of 
military monarchy remained incomplete. 


BS 


In the field of private law the movement in the early 
Empire was substantially as well as formally a continuation 
of that in the late Republic; and during both periods the 
processes by which the Roman law, civil and pretorian, 
was developed, were fundamentally the same as those by 
which Anglo-American law and equity have been devel- 
oped. This fundamental similarity is not generally appre- 
ciated, because the mode in which the Roman law was 
developed is not commonly understood. We read in every 
legal history that the Roman civil law was cast into the 
form of a code, the famous Twelve Tables, about four and 
a half centuries B.c., and that the further development of 
this law was accomplished chiefly by interpretation of the 
Twelve Tables. We read also that the interpretation which 
was accepted as authoritative, and by which the law was 
developed, did not proceed from judges, but until the third 


Problems of Roman Legal History 319 


century B.c. from a college of priests, and after that time 
from a small number of private citizens who were known as 
turisprudentes. ‘The English common law, on the other 
hand, as we all know, has been built up by judicial opinions; 
it is simply the permanent practice of the courts. At first 
glance it does not seem as if these two processes were analo- 
gous. On closer inspection, however, the differences are 
seen to be superficial. The law of the Twelve Tables was 
not a code in the modern sense of the word; it was simply 
a collection of the principal rules of early Roman customary 
law. From the point of view of comparative jurisprudence, 
it belongs to the same class (although to a more advanced 
period of legal development) as the early German Leges and 
the Anglo-Saxon dooms. It has recently been asserted by a 
prominent Italian historian that the Twelve Tables were 
probably a private compilation, and that the story of their 
construction by the decemvirs and of their submission to 
and acceptance by the Roman popular assembly deserves 
no more credit than the legend of the slaying of Virginia 
which forms a part of the narrative of the decemviral epoch. 
Still more recently this thesis has been defended with great 
ingenuity by a distinguished French legal historian. I my- 
self have not been convinced by their arguments. [ still cling 
to the belief that the essential part of the Roman story is 
probably correct; that the Twelve Tables were probably ac- 
cepted by a Roman assembly as the German Leges were ac- 
cepted a thousand years later by German tribal assemblies. 
For my present purpose, however, the answer to this histori- 
cal question is not material. In the later Republic the com- 
pilation known as the Twelve Tables was officially regarded 
as a Lex; it was revered as a charter of popular rights and as 
“the cradle of the civil law”; but it was interpreted with 
as much freedom as if it had been merely a private statement 
of the rules governing the administration of justice in a far- 
away and semi-barbarous age. It exercised little more real 
influence on the administration of justice during the last 
century of the Roman Republic than the laws of Alfred 


320 Problems of Roman Legal History 


exercised upon the English administration of justice in the 
time of the Tudors. The compilation had been surrounded 
for generations by a growing mass of interpretation, which 
had so modified and supplemented its primitive and scanty 
provisions that for all practical purposes the interpretation 
and not the dex was the law. 

The first alleged distinction between the development 
of Roman civil and English common law thus disappears. 
Each represents a development from rude and simple cus- 
tom to refined and complex jurisprudence by means of in- 
terpretation. There remains, however, the apparent differ- 
ence between the interpreters. What is there in common 
between the jurists of republican Rome and the king’s 
judges in England? ‘To answer this question we must con- 
sider the position and activity of the Roman jurists. They 
obviously were not judges in the ordinary sense, for they 
did not hear pleadings or try cases. They rather resembled 
our lawyers, for they gave advice to all who chose to con- 
sult them. They helped their clients to avoid trouble by 
drafting contracts, wills and other instruments; and when 
trouble had arisen, they gave opinions (vesponsa) on the 
legal points at issue. So far at least their activities were 
those of practising lawyers. But they differed from all 
other practising lawyers of whom we know anything in 
two important respects. In the first place, they did not 
take charge of cases in litigation, either as attorneys or as 
barristers. ‘They were willing neither to prepare cases for 
trial nor to argue cases before the zudices. Such matters 
were attended to by professional orators like Cicero. Cicero 
was a lawyer in our sense, but at Rome he was never re- 
garded as a jurist. In the second place, while the Roman 
jurists were always ready to furnish opinions, they neither 
expected nor received pecuniary rewards. The rewards 
at which they aimed were the gratitude of those whom they 
had served, the confidence of the public, and eventual elec- 
tion to political office. As practising lawyers they were, ac- 
cordingly, servants of the public in general rather than serv- 
ants of their special clients. . 


Problems of Roman Legal History eur 


To appreciate how far the Roman jurists discharged the 
same function as the English judges, we must note how 
controversies were actually decided at Rome and how they 
are actually decided under the English system. Contro- 
versies were actually decided at Rome, not by the magis- 
trate who heard the pleadings, but by iudices, who were 
private citizens. Similarly, controversies have been de- 
cided for the last seven centuries in the Anglo-American 
administration of justice by juries, also composed of private 
citizens. Neither were the Roman zdices nor are the Eng- 
lish jurymen supposed to know the law. As English jury- 
men are instructed by the judges, so the Roman zudices 
were instructed by the jurists. The instruction might be 
directly addressed to a zudex if he choose to ask for it, but 
it usually came in the form of an opinion obtained by one 
of the parties. It was of course possible that both parties 
might have obtained opinions from different jurists, and it 
was conceivable that the opinions might be conflicting. 
This, however, was not the rule but the exception; because 
the Republican jurists, in giving their opinions, were not in 
the position of paid advocates trying to make out a case 
for their clients; they were unpaid servants of the public 
and ministers of the law itself. Differences of opinion, 
under these circumstances, were no more numerous than 
those which have always existed in the English and Ameri- 
can courts. The republican ivdices were not bound to fol- 
low the opinion of any jurist; they had the powers of Eng- 
lish criminal jurors; they were judges of law and of fact 
alike. In both systems, however, it is noteworthy that 
the decisions actually rendered by iudices or by jurymen 
have never been cited as authority. What was cited at 
Rome was the response of a jurist, and what is cited in 
Anglo-American law is the opinion of the court. Hobbes 
perceived the fundamental analogy between the Roman 
jurists and the English judges when he declared, in his 
Leviathan, that the king’s judges were not properly judges 
but jurisconsults. 

The Roman law was thus developed, as the English law 


B90 Problems of Roman Legal History 


has been developed, not by the decision of controversies, as 
is sometimes said, but by the opinions expressed in connec- 
tion with such decisions by specially trained and expert 
ministers of the law. The English judge combines some of 
the powers of a Roman pretor with the authority of a 
Roman jurist — he is half preetor and half zurisprudens ; but 
his influence upon the development of the law has not been 
pretorian but jurisprudential. 

It should be noted further that single responsa did not 
make law at Rome any more than instructions from judges 
to juries have ever made law in.England or in America. 
What were regarded at Rome as authoritative precedents 
were the so-called ‘“‘ received opinions,” that is, the opinions 
which were approved and followed by the juristic class. 
In England and America, similarly, it is not the preliminary 
rulings or the final instructions of the trial judges but the 
opinions of the bench to which cases are carried on appeal 
that constitute precedents; and it is doubtful whether a 
decision of even the highest court in a case of first impres- 
sion really makes law. It seems the better opinion that it 
is the acceptance of such a decision by professional opinion 
and its reaffirmation by the court in later cases which makes 
it really authoritative. . 

The real difference between the Roman jurists and the 
English judges was that the Roman jurists, like the law- 
speakers of our German ancestors, who laid down the law 
for the folk-moots, were designated by natural selection. 
It is interesting to note that, before the conversion of the 
Germans to Christianity, their law-speakers were priests, 
as were the earliest Roman jurists. After the Germans were 
Christianized, the law-speakers were those persons who 
were generally recognized as “ wise men”’; their position and 
their authority, like that of the Roman jurists of the later 
Republic, rested on general opinion, which was itself based 
on professional opinion. Jn the Frankish period the law- 
speakers began to be artificially selected. The Frankish 
count appointed the “ advisers ” (rachineburgi); and these 


Problems of Roman Legal History 323 


advisers developed into the Schdffen of the middle ages. In 
other words, the German law-speaker is the ancestor of the 
European judge. At Rome also, in the Imperial period, 
artificial selection was substituted for natural selection. 
Certain jurists received from the Emperor “the right of 
responding ”; and the iudices were thenceforth bound to 
follow opinions given by these certified or “‘ patented ” ju- 
rists unless divergent opinions were presented. This change 
brought the Roman jurists a step nearer to the Anglo-Ameri- 
can judges. The evolution was completed, as I shall pres- 
ently indicate, in the second century after Christ; but before 
describing the processes by which law was made in the 
Empire, we must consider and compare Roman pretorian 
law and English equity, in order to see how far the processes 
by which these systems were developed present real analo- 
gies. 


+11 


Roman preetorian law and English equity are in so far 
analogous as they both represent what the Romans called 
tus honorarium — “‘ official law.” In both cases the new law 
was produced by governmental agencies which were not 
exclusively nor indeed primarily judicial — agencies which 
set themselves above the previously existing law and not 
merely supplemented it but overrode it. 

There was a superficial difference between the way in 
which the Roman preitors made law and the way in which 
the English chancellors made it. The pretors used the 
quasi-legislative form of ordinance or “ edict”; the English 
chancellors developed new rules in judicial fashion by de- 
cisions rendered in single cases. When, however, we ex- 
amine the edicts of the Roman pretors, and consider how 
their provisions were applied, the difference almost disap- 
pears. The pretor, like the chancellor, was originally an 
‘administrative rather than a judicial officer; but his duties 
were in the main judicial; it was his chief business to arrange 
for the termination of private controversies. The edict 


324 Problems of Roman Legal History 


which each pretor set up at the beginning of his year of 
office was not a series of commands but a programme. In 
it he set forth remedies and indicated under what circum- 
stances each remedy would be given. This programme was 
carried out, as single cases were presented, by means of 
formulas sent to the ivdices. The formula was a command; 
if the zzdex found certain allegations of the plaintiff to be 
true, and if he did not find certain other allegations of the 
defendant to be true, he was commanded to render a certain 
decision. The English chancellor decided cases as he saw 
fit. The Roman pretor caused cases to be decided as he 
saw fit. A new rule working itself out in chancery was first 
disclosed in the decision of the special case which sug- 
gested it, and any modification of the new rule was subse- 
quently revealed in the same way. Any new rules which 
the Roman pretor intended to enforce, any modifications 
which he intended to make in the rules laid down by his 
predecessors, were announced in advance, at the beginning 
of his year of office. Fundamentally these two methods of 
creating law are identical, and they both resemble law-finding 
rather than law-making. The rules laid down were sug- 
gested in both systems by actual controversies, and they 
were amended in both systems as new controversies afforded 
new points of view. In form the Roman process was more 
considerate of private interests. The complaint of the Eng- 
lish common lawyer, that equity was administered accord- 
ing to the length of the chancellor’s foot, would have lost 
much of its force if the length of the foot had been indicated 
in advance. é 

The similarities of the two movements are more striking 
than the formal differences between them. At the outset of 
his activity neither the Roman pretor nor the English chan- 
cellor was held to be capable of making or finding law or 
of creating new rights. Each, however, could issue orders, 
and each could enforce these orders im personam by fine and 
imprisonment. Each was therefore able to impose new 
sanctions and to create new remedies; and eventually, in 


Problems of Roman Legal History 22.5 


both systems, it was recognized that where there was a 
sanction there must be a rule and where there was a remedy 
there must be a right. Strictly speaking, the rules laid 
down in the edicts of the pretors and those expressed or 
implied in English decisions in equity became law by force 
of custom. It was by the iteration of the same rule in suc- 
cessive pretorian edicts (edicta tralaticia) that the Roman 
official law was built up. It was by the observance of prec- 
edents and the development of a settled practice that Eng- 
lish equity came to be a constituent part of the English law. 

There was, however, one important historical difference 
between the two movements. The development of the Roman 
pretorian law not only made Roman law more equitable, but 
it also introduced into that law the commercial customs of 
the Mediterranean — customs which apparently date back in 
part to the Babylonian empire. A similar reception of 
European commercial law took place in England, but here 
it came later, after the development of equity and chiefly 
through the action of the common law courts. In both 
cases, however, as Goldschmidt has pointed out, commercial 
law was not brought in as a distinct and separate system, 
as in the modern continental European states; the English 
law was commercialized by decisions of the common law 
courts, largely rendered in the eighteenth century, just as the 
Roman law had been commercialized by the pretorian edict 
in the second and first centuries B.c. 


IV 


In the Roman Imperial period the processes of law making 
became more obviously similar to the processes by which 
law has been developed in modern times. Under the Empire, 
law-finding gradually became altogether governmental. The 
first step in this direction was taken, as we have seen, when 
the jurists became representatives and agents of the Em- 
perors. The next step was to establish new courts, civil and 
criminal, in which Imperial officials heard the pleadings 


326 Problems of Roman Legal History 


and the evidence and rendered the decisions (tudicia ex- 
traordinaria). ‘The last step was to transform the surviving 
courts of the older republican type — the prztorian courts 
—Jinto purely governmental courts. This change was ac- 
complished by substituting for independent citizen iudices 
subaltern officers of the court, itself, mere referees. This 
last change brought the Roman courts to substantially the 
same form as the European continental courts of the present 
day. To describe the change in English phraseology, not 
only did the magistrates become judges, but jury-trial was 
abolished. 

In proportion as law-finding was governmentalized, it 
was also centralized. From the judgments of the inde- 
pendent zudices appeals had never been permitted. From 
the decision of the Imperial judges appeals ran to the Em- 
peror, or to such higher judges as he might designate. In 
the Imperial Council, or rather in that branch of the council 
which came to be known as the Auditory, the Roman Empire 
obtained a supreme court of appellate jurisdiction. 

In connection with these changes, all the more impor- 
tant offices of a judicial character came to be filled by the 
patented jurists. During the republican period and under 
the first emperors, the jurists might occasionally act as 
iudices and they frequently became magistrates, but their 
control over law-finding, although practically complete, 
was for the most part indirect. The great Roman jurists 
of the second and third centuries of the Christian era were 
judges in a modern sense; and it was by their direct activity, 
i.e., by their decisions on points of law, and particularly 
by the decisions rendered in the Imperial Auditory that the 
law of the Empire was chiefly developed. Their decisions 
were reported and digested in their own writings. To treat 
the juristic literature of the early Empire as “scientific law ” 
or “legal theory,” which became law only by popular or 
professional recognition, is to misrepresent its character and 
its authority. If the eminent European scholars who have 
written the standard histories of the Roman law were fa- 


Problems of Roman Legal History 27 


miliar with development of Anglo-American law, they would 
readily recognize the true character of the law developed in 
the Roman Empire. 

In the early Empire, as in the Republic, direct legisla- 
tion played only a subordinate part in the development of 
the law. After the middle of the third century, however, 
when the production of juristic literature ceased, it is com- 
monly assumed that all legal change was made by direci 
imperial legislation. As late as the beginning of the fourth 
century, however, the law was still developing largely by 
decisions. ‘The imperial rescripts which date from the lat- 
ter part of the third and the early part of the fourth cen- 
turies, and which constitute so important a part of Jus- 
tinian’s Codex, are case law, 7.e., they are decisions reached 
by the imperial supreme court, published as imperial re- 
scripts; and for the most part these rescripts are fully up 
to the level of the previous century. It was not until the 
fourth century that the Emperors began to declare that re- 
scripts issued in single cases were not to be regarded as 
establishing general rules. Then, indeed, legislation became 
almost the sole factor of legal development. This change, 
however, was not the result of a progressive evolution, it 
was a symptom of degeneration. Judicial decisions ceased 
to be regarded because jurisprudence had sunk to so low 
an ebb that the decisions were not worth regarding. The 
older case law, however, stood in undiminished honor and 
authority. Much of it was saved in Justinian’s Digest, 
some of it in his Codex. Only in these casuistic portions of 
Justinian’s compilations were there seeds of life; and from 
the close of the eleventh to the close of the nineteenth cen- 
tury those seeds have yielded rich and renewed harvests. 


A 


The subject assigned me — with which I have been tak- 
ing certain liberties — is not European legal history nor legal 
history in general nor comparative jurisprudence; it is Ro- 


328 Problems of Roman Legal History 


man legal history; and for this reason I have thus far con- 
fined myself, in the main, to indicating how largely the study 
of English legal history may be expected to help us to a 
deeper and truer comprehension of Roman legal history. I 
trust, in closing, that I may be permitted to take a further 
liberty with my theme, and to indicate that a careful study of 
Roman legal history will be of great service to the English 
or American student who desires to comprehend his own 
legal history. I lay little stress on the point that we may 
thus recognize what has been borrowed; I desire chiefly to 
insist upon the point that we may thus better appreciate the 
true character of English legal history as an independent 
development. Furnished with a knowledge of the Roman 
law and of its development, the English investigator will 
more accurately gauge by comparison the excellencies and 
the defects of the English law. He may not find that the 
Roman law is more scientific —a statement which I take to 
mean that its broader generalizations are thought to be 
more correct —but he will certainly find that the Roman 
law is more artistic. The sense of relation, of proportion, 
of harmony, which the Greeks possessed and which they 
utilized in shaping matter into forms of beauty, the Romans 
possessed also, but the material in which they wrought was 
the whole social life of man. There was profound self- 
knowledge in the saying of the Roman jurist that jurispru- 
dence was “‘ the art of life.” 

The comparative student will find also that while the 
English law has developed in certain directions further than 
the Roman, the Roman law in certain other respects had 
attained sixteen hundred or even two thousand years ago 
. a development which seems to go beyond ours. This is true, 
for instance, in the whole field of commercial dealings. The 
great regard paid in all commercial transactions to good 
faith and the instincts of an honest tradesman, and in par- 
ticular the abandonment by the Romans, two thousand years 
ago, of the primitive and dishonest doctrine of caveat emptor 
—a doctrine which the English law still unaccountably re- 


Problems of Roman Legal History 320 


tains — point out lines along which, I believe, our own law 
is bound to develop. 

Best of all, the comparative student will learn to distin- 
guish between that which is peculiar and therefore acci- 
dental in both systems and that which is common to both 
and therefore presumably universal. It has long been the 
hope of some of the greatest modern jurists, both in Eng- 
lish-speaking countries and in Europe, that by strictly in- 
ductive study it may be possible to discover a real instead 
of an imaginary natural law. The corresponding hope of 
the legal historians, that it will in time be possible to formu- 
late the great laws that govern legal development, is not, I 
believe, an idle dream; and I am sure that the minute com- 
parative study of Roman and Anglo-American legal devel- 
opments will carry us further towards such a goal than any 
other possible comparison. 


VIII 
JURISPRUDENCE * 


Our lives are controlled, to an extent which we do not 
measure without effort, by rules of conduct which are im- 
posed upon us by our environment and which we may not 
contravene without endangering our existence, our welfare 
or our happiness. We do not ordinarily realize the multi- 
plicity of these rules or their coercive operation, because our 

acceptance of them is largely unconscious and our obedi- 
ence to them, the leading of a normal or regular life, is 
largely automatic. When, however, we force ourselves to 
consider all these rules, and when we attempt to classify 
them, we see that some of them, such as the rules of health- 
ful living, represent primarily the adaptation of our conduct 
to our physical environment; others, such as the rules of 
thrift, adaptation to what may conveniently be termed 
our physical-social environment, that is, to those conditions 
which result from the interaction and reciprocal modifica- 
tion of human society and its environment; while a third 
group of rules, which may be termed social, seems to be im- 
posed upon us by the sentiments or the will of our fellow- 
men. When rules which we assign to the physical or to the 
physical-social group appear also, as they often do, in the 
distinctively social group — when, for example, we find that 
violations of the rules of health or of thrift are denounced 
as immoral and are in some instances penalized by law — it 
still remains true that these rules are not primarily social. 
They do not originate in social opinion, and disregard of 
them is attended by risks which society has not created. 
They receive the additional sanctions of morals and of 
1 A lecture delivered at Columbia University in the series on Science, 


Philosophy and Art, February 19, 1908. Published by The Columbia Uni- 
versity Press, New York, 1908. 


Juris prudence 331 


law because human interests are so solidary that the indi- 
vidual cannot live or die or prosper or suffer for himself 
alone. 

It may of course be queried whether we have any right to 
consider human society as a thing distinct from its physical 
environment, acting independently upon that environment 
and imposing upon us, as individuals, rules of conduct which 
are purely social. In the constitution of human society, 
indeed, there is much that seems arbitrary, and in its action 
there is much that is incalculable; but it is possible that 
our inability to forecast social action is due solely to the 
complexity of the phenomena, and that our impression that 
society determines in any degree its own constitution and 
conduct is an illusion. These questions, however, lie out- 
side of the field of jurisprudence. The law with which our 
science has to do assumes the existence of individual wills 
and bases its authority upon a social will. Whether the 
individual will is in any sense free; whether the social will 
is the resultant of free individual wills or a direct and inde- 
pendent product of the social life; in what degree the social 
life is itself controlled by forces which men do not create 
and cannot control — these are questions which the jurist 
gladly leaves to the psychologist, the sociologist and the 
philosopher. 

Legal rules, even when they are assignable, by virtue of 
their origin, to the physical or to the physical-social group, 
belong, as regards their legal quality, in the group of social 
rules. In the same group we find a second body of rules 
which we call moral; and in addition to legal rules and 
moral rules we are aware of a third body of more or less 
heterogeneous rules which you will permit me, for con- 
venience, to call manners. 

What now is the characteristic which differentiates law 
from manners and morals? Obviously not the field in which 
it operates, not the matters with which it deals. Law has 
indeed a field, or a number of fields, in which it operates 
alone. Law has created institutions of its own; and the 


332 Jurisprudence 


rules which shape these institutions and govern their opera- 
tion had no previous existence in manners or in morals. To 
a large extent, however, manners, morals and law cover the 
same field. To knock a man down, for example, or to 
wrest from him portable valuables is, in most instances, at 
once unmannerly, immoral and illegal. Especially large . 
is the field which is common to law and to morals —so large, 
indeed, that many time-honored definitions of law assume 
a complete correspondence of law with morals, and it has 
been possible to say, although erroneously, that law is sim- 
ply applied morals. | 

It is equally impossible to find the distinguishing char- 
acteristic of law in its purpose or end. The primary pur- 
pose of law is the maintenance of the social order; but this 
purpose is also subserved, in large measure, by morals and 
by manners. The graver disturbances of the established 
social order are usually stigmatized as immoral. The ex- 
istence, in the various fields of human effort, of accepted 
and regular modes of activity does much to lessen the fric- 
tion of social life; and the established forms of social inter- 
course, manners in the narrowest sense of the word, take 
out of the struggle for existence much of its bitterness and 
perhaps do more than either morals or law to prevent, 
breaches of the peace. 

The ultimate purpose of the law, indeed, is not the main- 
tenance of the social order but the assurance of the condi- 
tions of social progress. That man shall obtain increasing 
control over his physical environment; that the relations of 
men shall become more and more kindly; that human life 
shall be more and more worth living — these are the final 
objects of the law. To attain these ends individual effort 
must not only remain worth while, it must be increasingly 
encouraged; in other words, competition must continue; and 
yet anti-social activities must be increasingly restrained 
and there must be increasing codperation. The fundamental 
and eternal problem of human civilization is the reconcilia- 
tion of individual with social interests. Such progress as 


Jurisprudence 333 


has thus far been made towards the solution of this prob- 
lem has been achieved by raising the plane of competition 
and by increasing the range of codperation. In the methods 
of competition craft has replaced brute force, and fair play 
is replacing craft. The objects of competition have become 
and are becoming less and less material: honor is sought 
rather than wealth, and higher honor is accorded for social 
service than for personal success. The codperation of the 
horde has been replaced by that of the class and, in many 
fields, by that of the nation; international codperation exists 
and is increasing. All these ends, however, are moral as well 
as legal ends, and higher ethical ideals indicate lines of legal 
progress. 

We gain our first glimpse of the distinguishing charac- 
teristic of law, and perhaps of that of morals also, when we 
note the different results that attach to the disregard or 
violation of different rules of social conduct. If the rule 
infringed be one of manners simply, there is usually a so- 
cial reaction of surprise, attended commonly by ridicule of 
the offender. If the rule infringed be one of morals, the so- 
cial reaction is more energetic: it is more than a surprise, 
it is a Shock, and it is attended by more or less heated dis- 
approval, which may range from contempt through scorn 
to loathing. In the mind of the offender himself there is a 
reflex of the social disapproval; there is the prick of con- 
science, the sense of shame; and if he be a religious man 
and his offense be one that his religion brands as a sin, there 
will be a sense of divine displeasure. Arnold defined reli- 
gion as morality touched with emotion; but there is a marked 
element of emotion in morality itself, independent of re- 
ligion. All these reactions, it will be noted, are purely psy- 
chical, and the penalties which follow breaches of manners 
and morals operate upon the offender’s feelings. Law, on 
the other hand, encourages certain courses of conduct by the 
assurance of advantages and discourages other courses of 
conduct by imposing disadvantages or penalties which affect 
the property or the person; and these purely legal conse- 


334 Juris prudence 


quences may be enforced, in case of need, by the entire 
physical power of the community. 

We note further, and this brings us to a second differentia 
of law, that the advantages which follow the observance 
of legal rules and the disadvantages or penalties which at- 
tend the disregard or violation of such rules do not attach 
solely by virtue of the social sentiment or opinion, but by 
virtue of the social will. In civilized communities this social 
will is formulated through special processes and usually 
by special organs. The processes are mainly political and 
the organs are for the most part governmental. In constitu- 
tions adopted by the people, in acts passed by representative 
bodies, in orders of administrative officers and in decisions 
of courts we find, authoritatively stated, the rules of law, 
the advantages which attach to their observance, the disad4 
vantages or penalties which follow their disregard or viola- 
tion. The rules of manners and of morals, on the other 
hand, are not stated in any such authoritative form. In 
early society, indeed, authority over the entire field of con- 
duct is usually accorded to priests, and in later stages of so- 
cial development this authority frequently persists in the 
field of morals; but in an advanced civilization it tends to dis- 
appear. It may still be asserted, and it may long command 
extensive recognition; but the recognition becomes less and 
less general, and morals, like manners, tend to rest directly 
upon social sentiment and opinion. They are matters of 
usage. 

To affirm that law is formulated through special proc- 
esses, and chiefly by special organs of the community, is 
not to deny that its rules are largely determined by social 
sentiment. Manners and morals are, to a large extent, ante- 
cedent to law, and social usage has always furnished much 
of the material of which law has been made. In the earliest 
stages of legal development usage apparently furnishes all 
the material; it is converted into law simply by adding the 
support of social force; and in every state of social progress 
new law is made by the recognition and enforcement of es- 


Juris prudence 335 


tablished customs. Manners, morals and law, all appear to 
rest ultimately upon social utility. The conversion of usage 
into law, the decision whether any particular rule of conduct 
shall be supported by the physical power of the community, 
is clearly a question of social expediency. Social utility or 
expediency is determined, in the whole field of conduct, by 
the social judgment, and social force can be exercised only by 
virtue of the social will. The social judgment, however, is 
usually inarticulate; it reveals itself as sentiment. In the 
matters with which the law deals, we call this sentiment the 
sense of justice. The social will, likewise, is, in most in- 
stances, not aimless indeed, but only vaguely aware of its true 
aim; it manifests itself as impulse to do something, to sweep 
aside or crush something that is felt to be alien and hostile. 
As it is the primary function of practical ethics to interpret 
moral emotion and to give articulate form to the moral senti- 
ment, so it is the primary function of practical jurisprudence 
to interpret the sense of justice and to formulate in legal 
rules those ends toward which the social will is blindly grop- 
ing. Ulpian’s “ nomen turis a tustitia,”’ although indefensi- 
ble from the philological point of view, is good philosophy. 
In the interpretation of the social sentiment and the social 
will judges and legislatures have indeed an authority which © 
no men or bodies of men possess in the fields of manners and 
morals: even when they misinterpret the general sense of 
justice and thwart the general will, the rules which they 
lay down are law. Such law, however, has no root, and, if 
it be not formally abrogated or superseded, it becomes a 
dead letter. In the long run, general sentiment and opin- 
ion control not only the finding and making of law, but also 
its enforcement. 

Persistent disregard of general sentiment on the part of 
law-finders or law-makers is exceptional; in the democratic 
state it is almost impossible. Conflicts between general 
sentiment and positive law arise, as.a rule, only when so- 
cial changes have made the established legal rules unsatis- 
factory. Such conflicts take the form of agitation for the 


226 Jurisprudence 


reform of the law, and they cease when the law is suitably 
amended. Conflicts between sectional or local or class sen- 
timent and the general law arise, on the contrary, in every 
type of state, and such conflicts are practically incessant. 
Powerless, as a rule, to control law-finding or law-making, 
adverse minority sentiment makes itself felt in resistance 
to the enforcement of the law; and under favoring circum- 
stances the resistance may result in the nullification of the 
law. From such results it is sometimes inferred that the 
physical sanctions of the law are less coercive than the psy- 
chical sanction of opinion, even when the opinion is that of 
a portion of the community only, of a locality or of a social 
group. It should be noted, however, that when the law is 
worsted in these conflicts it does not put forth its full power. 
It is defeated because it binds its own hands. Laws are 
nullified, for example, because local administrative authori- 
ties are legally independent of the central administration, 
or because juries are permitted by the law to interpret the 
law as they see fit. It may not be advisable to destroy or 
seriously to limit local self-government because Sunday- 
closing laws are locally nullified, or to empower judges to 
set aside verdicts in criminal cases because business or labor 
interests make it difficult to punish illegal combinations; but 
these or similar changes in the law can be made if such be 
the general will. 

The strength of the law lies in the fact that its physical 
sanctions operate, or can be made to operate, with equal 
force throughout the entire area of a state and among all 
classes. The weakness of general opinion lies in the fact 
that it operates less strongly on men’s minds than does the 
opinion of their locality and that of their class. Especially 
strong is the influence of group opinion, and it is strongest 
in the smallest and most homogeneous groups. The pres- 
sure of social opinion seems to vary inversely as the square 
of the social distance. Hence the tendency of all usage to 
variation and to particularism; hence the lusty growth, at 
all times, of group morals — morals of the class, of the pro- 


Juris prudence Bay 


fession, of the business, of the gang. Left to itself, enforc- 
ing itself only by the pressure of social opinion, our existing 
morality would tend to revert to its primitive form, the 
usage of the horde. ‘The higher social utilities which the 
rules of general morals represent could never have prevailed 
over the interests of the horde or of the tribe or of the class 
through any appeal to reason or to individual interest; for 
feeling is stronger than reason and group feeling is stronger 
than self-interest. The agencies which in the past have 
slowly subordinated group morals to general morals, and 
by which general morals were perhaps first formulated, are 
religion and law. Every religion that has developed beyond 
the stage of a clan cult has, on the whole, lent its psychical 
sanction to the more general morals; and the religious sanc- 
tion, like the legal, can be made to operate with equal force 
over indefinite areas and upon all social classes. The law, 
in so far as it has had to deal with moral questions, has like- 
wise put its special sanction, that of physical force, behind 
general morals. In the early stages of civilization, religion 
apparently played the more. important part in formulating 
the rules of general morals and in securing their triumph; 
in later periods and at the present time law has possibly be- 
come the more efficient agency. Religion influences the be- © 
liever only; law coerces even the anarchist. Confessions are 
divided into sects, and churches are organized, in some in- 
stances, along the lines of class cleavage; states grow larger 
by conquest or by federation, and modern states are becom- 
ing increasingly democratic. 

Our analysis of social rules and of their operation upon 
the individual is not complete without a word regarding con- 
straints that are neither purely psychical nor purely physi- 
cal but economic. A religious association, possessing at 
the outset no means of securing obedience except those which 
are purely psychical, may come to exercise so general an 
influence over the minds of men that individuals cast out 
from its communion are completely boycotted and can ob- 
tain none of the necessities of life. A relatively small num- 


338 Juris prudence 


ber of persons, united by ties of class interest, may so monop- 
olize land or other means of production that no one can live 
by his labor except upon the terms which the group pre- 
scribes. A larger number of persons, similarly united by the 
ties of class interest, may so monopolize the labor market 
that no one outside of their association can obtain regular 
employment and that the production of goods becomes im- 
possible except upon the terms which they dictate. ‘There 
have been periods in which such associations or groups have 
become states, or at least governments. This was the case 
in the middle ages with the Christian church, the feudal 
nobility and some of the city guilds; and the rules established 
by these associations became law in the strictest sense of the 
word, since they were generally accepted and were supported 
by physical force. In the democratic state, however, with 
monarchic or representative government, such associations 
are not permitted to exercise permanently an economic con- 
straint which parallels and possibly neutralizes the con- 
straints imposed by the general will and applied through 
governmental organs. If the ends which such associations 
pursue are approved by the social judgment, the constraints 
are legalized, but the associations are brought under legal 
control. Otherwise, their efforts to exercise an irresistible 
extra-legal constraint are repressed as illegal conspiracies. 
The democratic state is rightly jealous of jts monopoly of 
coercion, for its government alone can be trusted to exercise 
coercion in the interests of liberty. 

By way of summing up the results thus far reached, I 
suggest, with all deference to the superior authority of the 
specialists in ethics, that morals is that part of the social 
order which is supported by social opinion, touched with 
more or less emotion; and, with more confidence, I describe 
law as that part of the social order which by virtue of the 
social will may be supported by physical force. 


Law is in part found, in part made; that is, it is estab- 
‘lished partly by decisions and partly by legislation. Of 


Jurisprudence — 339 


these processes the decision is not only the older but the 
more important and the more persistent. A decision is not 
alone the termination of a pending controversy, it is also a 
precedent for future decisions. To us, to-day, the word 
suggests primarily a judicial decision; but there were de- 
cisions before there were courts, and decisions that make 
law are still rendered to-day outside of the courts. The 
primitive human community resembles those lowest forms 
of animal life which exercise with the whole body a num- 
ber of functions which the higher animals exercise only 
through special organs. The primitive decision is a com- 
munity-decision, and its earliest form is the lynching or 
running-out of the individual who has violated one of the 
rules of conduct which the community feels to be funda- 
mental. In somewhat more advanced communities there 
is another very important form of community-decision. 
When a man has slain another in self-defence or in rightful 
vengeance, the community may intervene to protect him 
from blood-feud, just as to-day the community, acting 
through special organs, absolves from responsibility the in- 
dividual who has shot a burglar at night in his bedroom. 
In both cases the slaying of the wrongdoer precedes the de- 
cision that he has been rightfully slain; but in both cases the 
decision in favor of the man who has taken the law into his 
own hands recognizes that what he has taken into his own 
hands is law. 

After the establishment of courts, community-decisions 
tend to disappear in that part of the law with which the 
courts are competent to deal. In those parts of the law, 
however, in which the courts are not competent, in political 
law, for example, community-decisions have continued to 
establish law in modern times. All unwritten constitutions 
rest on precedents, and constitutional precedents are set 
whenever acts of power are supported or accepted by the 
whole community. And in the international community 
the only rules that are strictly legal are those which have 
been enforced in the past, and will therefore presumably be 


340 Jurisprudence 


enforced in the future, by the international community, the ~ 
concert of powers. The rest of what we call international 
law is as yet only international morals and manners. 

The processes by which early society develops judicial. 
and legislative organization have only recently begun to 
be understood. As regards European communities, we can 
now say with confidence that neither law-finding nor law- 
making has any historical connection with the authority of 
a patriarch to settle disputes of his descendants and to lay 
down rules for their future conduct. In general, it may be 
said that the more light we get on the conditions prevailing ~ 
in really primitive human society, the less we see of anything 
resembling a patriarch. Ages seem to have been necessary — 
for the establishment of marital and paternal authority, and 
ages more for the development of the patriarch; nor is any 
patriarchate so complete as that of the Romans known to 
have existed among any other European people. The earli- 
est European court was not patriarchal but popular. In it 
the community still acted collectively, but it acted not as a 
mob but as an orderly assembly. The assembly court had 
from the outset special law-finding organs; it gradually de- 
veloped special organs of decision; and the modification, 
rearrangement or combination of shore organs have produced 
every type of modern court. 

Legislation, as we know it, has two historical roots: for- 
mal agreement of the community (which originally, it seems, 
had to be unanimous) and the order issued by the war-lord to 
the people under arms. From the power of the military 
leader to issue orders to his men was derived, when tempo- 
rary leadership grew into permanent kingship, the power to 
issue orders in time of peace. Among European peoples, how- 
ever, such orders were not originally regarded as laws in any 
proper sense, but merely as administrative measures; and 
neither among the Germans nor among the Romans could 
such orders be enforced, originally, by any means other than 
a fine, legally limited in amount. Only in proportion as a 
king gained power by conquest did his ordinance power ex- 


Jurisprudence 341 


pand into anything like legislative power; and it amounted 
to general legislative power only when the king became an 
absolute monarch. In the modern state the executive order 
has shrunk into something like its original dimensions, while 
the general power of the people to legislate by agreement is 
still exercised directly or through representatives. 


Even in the earliest stages of legal development, when 
the social will manifests itself directly in social action — in 
lynchings, for example — there are experts to tell the com- 
munity why it acts as it does. These experts are not law- 
yers only; they belong to the single undifferentiated profes- 
sion from which have emerged all the professions of civilized 
life; they are experts in all matters natural, human and di- 
vine; they formulate the rules of health, of thrift, of man- 
ners and of morals. All this knowledge is one body of wis- 
dom, and all these rules are part of the religion of which 
these men are the priests. In their undifferentiated activity 
we are nevertheless able to recognize special fields of legal 
action. ‘They define not only the cases in which individuals 
may rightly be slain or be thrust out into the deserts or 
forests, but also the cases in which clan feud may be rightly 
raised or private vengeance rightly taken. They also devise 
the earliest methods of deciding doubtful cases and of termi- 
nating controversy. Among the early Romans the legal 
activity of the priests had become so highly specialized that 
not only was there a class of priests whose business was 
chiefly legal, but there were three boards of these priests: one 
for interstate relations, another for the public law of Rome, 
and a third for the private law. 

After courts of justice were established, the priestly law- 
finder was succeeded and displaced, in European legal de- 
velopment, by the secular law-finder, whom the Romans 
described as the jurisprudent or jurisconsult, the Germans 
as the wiseman or law-speaker. These law-finders were un- 
official persons: they were neither elected by the assembly 
nor appointed by king or magistrate. They emerged from 


342 Jurts prudence 


the body of the people by a natural selection; they were en- 
titled to declare the law because they knew the law. Con- 
clusive, of course, as to the authority of a new law-speaker 
was the general opinion of the older and recognized law- 
speakers. These experts were not judges in our sense, nor 
did they directly decide controversies. In the early Euro- 
pean court a governmental chairman heard the pleadings 
of the parties, but he was not necessarily a lawyer. The 
decision was rendered originally by the whole body of the 
freemen, as among the Germans; in a more advanced stage 
of development it was rendered, as in Greece and republi- 
can Rome, by a larger or smaller body of citizens, or by a 
single citizen; but even when, as at Rome, the decision on 
the law and the facts was rendered by a single citizen, he 
was not necessarily learned in the law. The naturally se- 
lected unofficial experts informed the chairman of the court 
whether the pleadings were regular; and it was from such 
experts that the people or their representatives learned the 
rules of law which should govern their decisions. Outside 
of court these experts gave legal advice to individuals. They 
accordingly combined the functions of the modern law-find- 
ing judge and of the modern counselor. 

The modern type of court with which we are all familiar 
was constructed at Rome in the early Empire, and was con- 
structed again a thousand years later in Norman England, 
by the simple expedient of selecting a jurist or wiseman 
for chairman of the court. This change substituted for the 
naturally selected unofficial law-finder an artificially selected 
official law-finder. In the English type of court popular 
cooperation in the administration of justice reappears in 
the jury; but, as the decision of the people in the earliest 
European court was guided by the instruction of the expert, 
so the decision of the modern jury is guided by the learned 
judge. | 

After the judges were taken out of the general bod 
of experts, the remainder of the legal profession (including 
certain elements which were not historically derived from 


Jurisprudence 343 


the law-speaking or jurist class) was organized either, as in 
England, in the two groups of barristers and solicitors or, as 
in imperial Rome and in the United States, in a single un- 
differentiated body of practising lawyers. 

When we say that law is established by decisions, we do 
not mean that the condemnation or acquittal of a person 
accused of crime or the rendering of a judgment for the 
plaintiff or for the defendant in a civil case establishes the 
law. It is in the determination of the legal question at issue, 
by the recognition and formulation of the legal rule which 
governs the case, that the law is established. This, as we 
have seen, has always been the work of experts. That part 
of the law which the Romans described as the customary 
or unwritten law, which we describe as common law or case- 
law, is, in reality, simply expert opinion. The unwritten 
law of Rome consisted, in the republican period, of the 
“responses ” of the unofficial jurists, in the imperial period 
of the responses of the jurists who were authorized to re- 
spond and who, for the most part, were imperial judges. 
Old German tribal law was found in the “ wisdoms”’ or 
“dooms” of the wisemen or law-speakers; English and 
American common law consists of the opinions rendered in 
court by learned judges. 

These experts, it should be noted, have always been men 
engaged in the practical application of the law; and their 
opinions have always been given in connection with cases 
actually in litigation and in view of the facts of each spe- 
cial case. It should be noted, further, that the unsupported 
Opinions of single experts have rarely been regarded as au- 
thoritative. The response of the single jurist at Rome, the 
wisdom of the single law-speaker among the Germans, was 
regarded as establishing the law only in so far as it was ac- 
cepted by the whole body of legal experts. Similarly, in 
the latest stage of legal development, the opinions which are 
cited as authoritative are those rendered on appeal by courts 
of final instance. It should be added that the modern bench 
always depends largely on the bar to cast light on all sides 


344 Juris prudence 


of a difficult legal question, and that, in the English and 
American practice, the authority of a decided case may al- 
ways be impugned on the ground that it was not fully argued. 
To make our description of unwritten or case-law completely 
accurate, we should therefore say that it is deliberate and 
accordant expert opinion. 

While the expert law-finders have always claimed that 
they were following precedents and abiding by the rules 
laid down in decided cases, they have always exercised 
great freedom in the interpretation of earlier decisions. 
In the development of the customary or unwritten law it 
has always been assumed that the law which is found in 
decided cases existed somewhere before the cases were de- 
cided. One of the oldest German words for law is éwa, 
that which has always been. Of this eternal law the wis- 
dom or dooms pronounced by the wisemen were simply the 
accepted statements. This is still the orthodox doctrine 
of all courts of justice. From it is derived the very im- 
portant inference that the form in which a rule has been 
stated in earlier cases is not binding; it is always admissible 
to re-examine the cases and to restate the rule. The pos- 
sibilities of change and development inherent in such a 
theory are obviously very great; they have been sufficient 
to enable the courts to meet, by constant re-interpretation, 
most of the needs of a progressive society. It was in fact 
mainly by interpretation that the Roman law and the Eng- 
lish law were developed from rude customs into the stately 
fabrics beneath whose shelter all civilized peoples except 
the Chinese and the Mohammedans are now living. 

In connection with the development of the rules of the 
unwritten law there also gradually appears a set of more 
general rules described as principles. ‘These present them- 
selves as propositions of which the ordinary rules are merely 
corollaries; and from these principles are frequently derived, 
in case of need, entirely new rules. The eternal existence of 
these principles is asserted with even greater energy and 
persistence than is the eternal existence of the special rules; 


Jurisprudence 345 


but here also it is recognized that no particular statement 
of a principle is definitive. 

When we make abstraction from the time-honored fictions 
of the law-finders, and consider what European legal experts, 
priests, law-speakers and judges have actually been doing 
in the twenty-three hundred years over which our observa- 
tion extends, it is impossible, I think, to deny that their 
methods have been scientific — far more scientific than their 
own description of their methods. The fundamental assump- 
tions upon which all their work has been based are obviously 
these: that law exists for the protection of social interests, 
and that social interests are more truly reflected in social 
feeling, in the general sense of justice, than in any reasoned 
theories. In their effort to give to the social sense of justice 
articulate expression in rules and in principles, the method 
of the law-finding experts has always been experimental. 
The rules and principles of case-law have never been treated 
as final truths but as working hypotheses, continually re- 
tested in those great laboratories of the law, the courts of 
justice. Every new case is an experiment; and if the ac- 
cepted rule which seems applicable yields a result which is 
felt to be unjust, the rule is reconsidered. It may not be 
modified at once, for the attempt to do absolute justice in 
every single case would make the development and main- 
tenance of general rules impossible; but if a rule continues 
to work injustice, it will eventually be reformulated. The 
principles themselves are continually retested; for if the 
rules derived from a principle do not work well, the principle 
itself must ultimately be re-examined. 

The further this process is carried, the more does the 
conscious recognition of social utility become the real, al- 
though unavowed, basis of decisions — “ the secret root,” as 
Holmes says in his Common Law, “from which the law 
draws all the juices of life.” In novel cases, however, espe- 
cially when their novelty is due to changed social conditions 
—jin cases, that is, in which the sense of social utility has 
not yet attained its reasoned justification — the finding of 


346 Jurisprudence 


new law is always controlled by feeling rather than by 
reason. 

That legal experts have not generally described their 
methods as experimental and inductive is probably due to 
the fact that the scientific character of such methods has 
not been generally recognized until modern times. Through 
the ages in which deduction from unquestioned premises 
was regarded as the only scientific mode of thought, the 
lawyers not unnaturally endeavored to represent their prem- 
ises as absolute and unchanging and their method as purely 
deductive. 


Great as are the possibilities of the development, by in- 
terpretation, of law which has no objective existence except 
in its interpretation, these possibilities are not unlimited. 
In all law, and most of all in law established by decisions, 
there is a tendency to persistence, a resistance to change. 
This is true of all law, because society demands not only 
that the rules of law be just, but also that they be certain. 
It is especially true of case-law, because the development 
of this law is wholly in the hands of lawyers, who are gen- 
erally more conservative than laymen. Their conservatism 
is rational, because they understand, better than laymen, 
the meaning and the value of the accepted principles and 
rules of the unwritten law; and it is valuable to society, 
because these principles and rules represent the abiding 
sense of justice, as against momentary gusts of popular 
feeling, and the accumulated experience of centuries, as 
against impressions derived from situations which are ex- 
ceptional and which may be transitory. Legal conservatism, 
however, is a constant impediment to necessary changes; 
if it cannot prevent, it delays them; and the delay which 
it causes is most constant in case-law. A current of de- 
cisions may be diverted, but it cannot well be made to flow 
backward; and if its direction is to be seriously modified, it 
will not turn abruptly but will sweep round slowly in a very 
long €urve. Accordingly, in periods of rapid social change, 


Juris prudence 347 


law is made by other processes than those which we have 
been considering. 

One of these processes is that by which the pretorian law 
was developed at Rome and equity in England. In both 
instances new law was made and enforced by executive 
or administrative authority, and in both instances this new 
law was developed experimentally in the administration of 
justice between litigants. It was thus substantially the 
same process by which the older law had been developed; 
but the old precedents were disregarded and a fresh start 
was made. Both at Rome and in England the new law was 
framed by experts: at Rome by the jurists who sat in the 
councils of the pretors, in England by a special court with 
its own bar. In both instances admirable results were 
achieved; but in both instances the production of new law 
through these administrative agencies ceased when the so- 
cial needs which had set them in motion were satisfied. 
The pretors and chancellors began to adhere with increas- 
ing strictness to the precedents established by their prede- 
cessors; the new law became relatively stable; and the en- 
suing legal development proceeded along the old lines of 
interpretation until legislation became active. 

In modern times, however, the making of law by the 
decisions of administrative authorities is reappearing. On 
the continent of Europe there are regular administrative 
courts, and their decisions not only control the working of 
the administrative machinery, but affect the interests of in- 
dividuals. In our country administrative tribunals are mul- 
tiplying in the form of federal and state commissions, which 
are clothed with quasi-judicial as well as with quasi-legisla- 
tive powers and which are meeting new social exigencies by 
decisions as well as by administrative orders. When, as is 
the case both in Europe and in the United States, certain 
matters fall exclusively within the jurisdiction of these ad- 
ministrative authorities, their decisions create new law. In 
Europe it is recognized that administrative judges should be 
experts alike in administration and in law. In the United 


348 Juris prudence 


States, where administrative tribunals are comparatively 
new and their importance is imperfectly realized, this double 
qualification is not as yet demanded. 

Legislation is confined, in early stages of legal develop- 
ment, to matters of policy and is chiefly employed for the 
adoption of temporary measures in the face of special ex- 
igencies. The abiding social order, the ancient law, is too 
sacred a thing to be changed consciously and openly. When 
early legislation touches the field of general law it is usually 
declaratory, that is, it simply affirms the law already recog- 
nized and enforced in the decision of controversies. Such 
declaratory legislation first appears, in many communities, 
in connection with early attempts to set forth the law as a 
whole, that its provisions may be better known. The use of 
legislation, whether popular, royal or representative, as a 
means of changing the general law comes late in European 
political life. The idea that the law stands in need of con- 
stant change and that the necessary changes are normally to 
be accomplished by legislation is an idea that appears only 
in a very advanced civilization. In the Roman Empire it 
appeared only in the period of decline and decay. In the 
West Gothic and Frankish Empires legislation was fairly 
frequent because of the persistence of late Roman traditions. 
In medieval Europe, after the ninth century, there was 
little legislation except in church councils and in the free 
cities; and in the cities legislation was active only when they 
had attained a high degree of economic and political develop- 
ment. In the modern European states there was little re- 
formatory legislation before the eighteenth century, nor did 
statutory law gain anything like its modern volume before 
the nineteenth century. 

The increasing part played by legislation in late periods 
of legal development is due in some measure to the increased 
rapidity of social change, in some measure to an exaggerated 
faith in the power of law to modify social conditions and to 
remedy social evils, but in the main, apparently, to the fact 
that there are certain portions of the law which courts are 


Jurisprudence 349 


wholly unable to develop and certain other portions in which 
judge-made law is less satisfactory than enacted law. Politi- 
cal law, constitutional and administrative, is usually beyond 
the competence of courts. This part of the law, developed 
during long stretches of time by community-decisions, is at 
last embodied in statutes and in written constitutions. 
Again, that part of the law which expresses interests which 
are primarily social tends always, and particularly in a demo- 
cratic society, to be formulated by the direct assertion of the 
general will. Finally, there is a considerable part of the 
law which is distinctly arbitrary. Here also there must be 
rules; but from the point of view of justice it seems im- 
material what the rules shall be. Here certainty, not jus- 
tice, is the imperative social demand, and here the move- 
ment toward legislation begins at a very early period. 
After ceding all these fields to legislation, a large do- 
main may yet be reserved for the tentative development of 
law by the courts. To the courts may be left that part of 
the law which primarily subserves the interests of indi- 
viduals, which accordingly grants to individuals a large 
measure of liberty, and which, for this reason, has to deal 
with extremely varied and highly complex relations. In 
this part of the law the demand for justice is more im- 
perative than the demand for certainty. This part of the 
law, roughly speaking, is the law of personal property, of 
contracts and of torts. To the very end of the Roman Em- 
pire this part of the law remained embodied in decided 
cases, and the same is true to-day among all English-speak- 
ing peoples. The belief, so generally held to-day, that in a 
really advanced civilization legislation must cover the whole 
field of the law, that the finding of law by courts is a remnant 
of archaic conditions destined gradually to disappear — 
this belief has no basis except in the conditions existing 
to-day in continental Europe and in those countries which 
have derived their institutions from continental Europe. 
But in continental Europe, from the dissolution of the 
Frankish Empire until the establishment of national states, 


3250 Juris prudence 


the political and legal development was abnormal. In the 
Roman Empire, and in England after the Norman conquest, 
there were at all times organs capable of finding general 
law as well as organs capable of making such law, and there 
was always a central authority able to subordinate local 
law to general law. Both in the Roman and in the English 
legal development, accordingly, it was possible to create 
general or common law by decisions as well as by legisla- 
tion. In continental Europe the national state developed 
much later than in England: in Germany and in Italy it was 
not organized until the nineteenth century. Until it was 
organized there were no efficient organs for finding or making 
national law. When it was organized, the existing law was 
in the main provincial or local; and the provincial and local 
laws were so firmly established that national law could be 
produced only by legislation, and a complete body of 
national law could be created only by codification. 

The work of the legislator is akin to the work of the 
judge, in that it is his business to express the social will in 
the form of rules. In the work of the legislator a higher 
degree of skill is required than in the work of the courts, 
because rules laid down in statutes are less easily amended 
than rules laid down in decisions. A representative leg- 
islature, in particular, is a cumbrous piece of political ma- 
chinery, not easily set in motion; and if a law be ill-con- 
sidered or badly drawn, it will do much harm before it 
arouses enough resentment to secure its amendment or re- 
peal. In modern European countries, including Great Brit- 
ain, these considerations have led to the development of a 
class of legislative experts, men who are primarily trained 
lawyers but who are also trained legal draftsmen, and who 
hold permanent appointments in the governmental service. 
These experts not only draw all bills which are introduced 
by the government, but they examine bills introduced by pri- 
vate members of the legislative body; and it is usually im- 
possible for a private member to secure the adoption of a 
bill unless it be put in such form as the governmental experts 


Jurisprudence 351 


deem satisfactory. Under the influence of this body of leg- 
islative experts, a scientific theory of legislation has obtained 
general acceptance. It is recognized that no finite intelli- 
gence can anticipate the various situations to which a pro- 
posed law may become applicable or the varying conditions 
under which it may be applied. A modern European statute 
accordingly lays down the principles that are to be applied 
or indicates the ends that are to be attained, and leaves the 
detailed rules which shall give effect to the legislative purpose 
to be formulated in administrative orders or to be worked 
out in decisions. In the United States the legislative expert 
is only beginning to appear and is still in the unofficial stage 
of development. Under these conditions it is not surprising ~ 
that our theory of legislation is that of a past age. Our 
legislators try to do too much, and by attempting to provide 
for all contingencies they not only embarrass the administra- 
tion and the courts, but in many cases they defeat their own 
purposes. 

The making of a code, especially of a civil code, which 
sets forth the rules of the private law, that is, the law of 
property, of contracts, of family and of inheritance, is the 
most difficult work in the field of legal science. The suc- 
cessful solution of this problem presupposes a large and — 
well reasoned body of case-law and numerous well digested 
systematic treatises. No single expert has ever constructed 
a satisfactory civil code: the work must be done, as it has 
been done in modern European states, by a commission of 
experts. The most scientific process which has ever been 
employed in the work of codification is that which was em- 
ployed in the German Empire in the construction of the 
existing civil code. A committee on plan and method was 
appointed in the spring of 1874. In the autumn of the 
same year, in accordance with the recommendation of this 
first committee, a commission of eleven eminent jurists was 
constituted, with the chief justice of the highest imperial 
court as its president. In the year 1887 a complete first 
draft was presented to the government. In 1888 this was 


352 Juris prudence 


published, with five volumes of “ motives.” An enormous 
amount of expert criticism appeared in this and the ensuing 
years. All this criticism was carefully digested by govern- 
mental experts. Their digest was arranged in the order of 
the sections of the draft code and was published in 1894. 
With the aid of this digest a second commission revised the 
draft of 1887, and a greatly improved second draft was pub- 
lished in 1895. -After further slight revision by a committee 
of the Imperial Diet, the code was adopted in 1896, and it 
went into force in 1900. 


The occupation of any portion of the legal field by writ- 
ten law, constitutional or statutory, in no wise terminates 
the activity of the courts in that field; it does not even ter- 
minate their law-finding power. Scientific legislation recog- 
nizes fully that the detailed rules which are needed to. give 
effect to a legislative policy must be worked out partly or 
wholly by the courts. Unscientific legislation requires from 
the courts something more than this subsidiary law-finding; 
it requires corrective interpretation. ‘The same is true of 
the most thoroughly considered and most carefully drawn 
laws, when the social conditions to which they must be ap- 
plied have undergone serious changes. According to the 
theory of the separation of powers, the courts should not 
use their power of interpretation for the purpose of correct- 
ing or amending legislation; they should apply the written 
law as it is written, leaving to the legislatures the task of im- 
proving it. Practically, however, this course would result 
in so much inconvenience and injustice as to arouse public 
resentment, not against the legislatures but against the 
courts. The general purpose of the law, it would be said, 
is evident; why do the courts not endeavor to realize that 
purpose? This accordingly is what the courts try todo. For 
more than two thousand years it has been an accepted legal 
principle that, in interpreting the written law, effect should 
be given, as far as possible; to the spirit and intent of the 
law. Here again the possibilities of law-finding under cover 


Juris prudence Cae 


of interpretation are very great. A distinguished German 
jurist, Windscheid, has remarked that in interpreting legis- 
lation modern courts may and habitually do “ think over 
again the thought which the legislator was trying to express,” 
but that the Roman jurist went further and “ thought out 
the thought which the legislator was trying to think.” Of 
this freer mode of interpretation Windscheid might have 
found modern examples. The president of the highest French 
court, M. Ballot-Beaupré, explained, a few years ago, that 
the provisions of the Napoleonic legislation had been adapted 
to modern conditions by a judicial interpretation in “le sens 
évolutif.” ‘We do not inquire,” he said, ‘‘ what the legis- 
lator willed a century ago, but what he would have willed 
if he had known what our present conditions would be.” 
In English-speaking countries this freer mode of interpre- 
tation has always been applied to the unwritten or common 
law, and it is usually applied to the written law with a degree 
of boldness which is very closely proportioned to the diffi- 
culty of securing formal amendment. Thus the rigidity of 
our federal constitution has constrained the Supreme Court 
of the United States to push the interpreting power to its 
furthest limits. This tribunal not only thinks out the 
thoughts which the Fathers were trying to think one hundred 
and twenty years ago, but it undertakes to determine what 
they would have thought if they could have foreseen the 
changed conditions and the novel problems of the present 
day. It has construed and reconstrued the constitution in 
“the evolutive sense,’ until in some respects that instru- 
ment has been reconstructed. 


Every science classifies the phenomena with which it 
deals. In the law classification is especially necessary be- 
cause, without classification of persons, of acts and of rela- 
tions, it would obviously be impossible to lay down any 
general rules. In the early stages of legal development 
classification is crude: persons are either fully capable and 
responsible or completely incapable and irresponsible; acts 


354 Juris prudence 


by which property may be transferred or debt created are 
limited in number, and such acts are valid or invalid ac- 
cording as certain forms are or are not rigidly observed. 
In early law certainty is far more important than equity. 
In the later stages of legal development classification be- 
comes increasingly refined, and, correspondingly, the law 
becomes more and more equitable; for equity, in last analy- 
sis, means discrimination. To this process, however, there 
are necessary limits. In its most advanced development 
the law necessarily deals with typical persons, typical acts 
and typical relations; for if it should attempt to deal spe- 
cially with variations from the normal type it would lose 
all certainty. In becoming absolute equity it would cease 
to be law. Modern society, however, provides special or- 
gans of discrimination, in such institutions, for example, 
as the pardoning power and the jury. The great social 
advantage of the jury is that it can bend the law in hard 
cases without creating authoritative precedents. 

Every science, again, analyzes the phenomena with which 
it has to deal. In the law every act is resolved into its 
inward and its outward elements: crime becomes a combi- 
nation of wrongful intent and illegal conduct; contract be- 
comes a meeting of two corresponding wills in corresponding 
declarations. Every legal relation is resolved into its con- 
stituent powers or rights; and in spite of the very great 
variety of legal relations, the variety of legal rights is seen 
to be limited. 

The conception of the legal right is to-day so familiar, 
and it seems so simple, that we can hardly realize with what 
difficulty it was attained. But as early law was wholly 
remedial and the substantive legal order which the remedies 
supported was only slowly recognized, so the legal right 
long lay concealed behind the correlative and essentially 
ethical notion of the duty. Brunner tells us that in the 
Germanic languages the word Recht, whether used in the 
sense of right or of law, is clearly younger than the other 
words for law; and Hozumi assures us that the Japanese 


Jurisprudence 355 


language had no expression for the legal right until 1868, 
when a word was coined by a Japanese writer who had 
studied European law at Leyden. And only in our own 
time has it been clearly perceived that the legal right, pre- 
viously regarded as the atom of all legal relations, is itself 
a combination of a definite interest and a limited power, 
and that these two elements are separable. ‘This was one 
of Jhering’s great contributions to jurisprudence. Coup- 
ling this analysis with Burgess’s sharp distinction between 
state and government, we see that it is in no sense inexact, 
as has been frequently asserted, to speak of public legal 
rights. Of course limited powers can not be attributed to 
the state, because the state is legally omnipotent; but 
limited powers may properly be attributed to any organ 
of government, and our public rights are in fact a combina- 
tion of definite public interests with limited governmental 
powers. The possible developments of this line of thought 
in private and in public law are as yet imperiectly realized. 

The final task of legal science is the orderly and conven- 
ient arrangement of all the institutions and rules of the 
law, public and private, substantive and remedial, in a logi- 
cal system. The difficulties of this problem are very great, 
because of the innumerable points at which each part of 
the law touches every other part. Interrelations so com- 
plicated that the mind must work in a fourth dimension to 
apprehend them cannot be satisfactorily exhibited along the 
single line of a topical arrangement. 

I have already indicated that the formulation of legal 
rules and principles has been, in the main, the work of 
practical jurists, men actively engaged in the administration 
of justice. The same statement may be made as regards 
legal classification and analysis, both in Roman and in 
English law. Not only has most of this work been done 
in the judicial laboratory, in connection with the discussion 
and decision of concrete cases, but the results obtained are 
largely embodied in judicial opinions. Moreover, the liter- 
ature in which these results are presented has for the most 


356 Jurisprudence 


part been produced by practical jurists. Nearly all the 
juristic writers of the Roman Empire were imperial judges 
(a few only were law professors), and their writings were 
substantially digests of the practice of the imperial supreme 
court. In English-speaking countries the legal literature 
has been less important; in these countries legal classifica- 
tion and analysis, like the rules of the law, are for the 
most part to be sought in the law reports; but in these 
countries, as at Rome, the most valuable contributions in 
these fields of legal science have been made by practical 
lawyers, by judges or by members of the bar. In this re- 
spect, again, the continental European development, dur- 
ing the middle ages and in modern times, has been differ- 
ent. In consequence of the arrested development of national 
law, recourse was had to the compilations of Justinian; be- 
cause of the antiquity of these compilations their study 
centered in the universities; and from the eleventh century 
down to the present time nearly all the legal literature 
was written by professors. These writers were, indeed, 
by no means out of touch with the administration of justice. 
Not only were some of them judges, but until comparatively 
recent times university law faculties were frequently called 
upon to decide difficult cases. The relation between legal 
literature and applied law was, however, fundamentally 
different from that which existed in the most productive 
period of Roman jurisprudence and exists in English-speak- 
ing countries. It was a relation not of dependence but of 
control. The constructive work of the academic writers 
was based chiefly on that part of the Roman legal litera- 
ture which is preserved in the Digest of Justinian. In this 
literature they had at their disposal a rich and admirably 
reasoned body of case-law. The decentralized administra- 
tion of justice in the secular courts was producing no case- 
law comparable with the Roman in range or in quality. For 
all these reasons, legal literature obtained, and it still in a 
measure retains, a direct influence upon the decisions of the 
continental European courts which it did not exercise in 


Jurisprudence a7 


the ancient Roman world until the period of legal decadence 
in the fourth and following centuries, and which it has sel- 
dom exercised in the countries of the English law. 

On the other hand, attempts to present the law or large 
parts of the law in systematic treatises have always been 
made under academic influences. _ Gaius, who wrote his 
Institutes of Roman law in the second century, and whose 
arrangement was generally followed, even in English-speak- 
ing countries, until the nineteenth century, seems to have 
been a law professor. The most important systematic works 
produced in France prior to the nineteenth century were 
those of Donellus and Pothier, both professors, although 
Pothier was also a judge. The modern German arrangement 
(Pandektensystem), which is replacing that of Gaius, was 
developed in university lectures; and a series of academic 
writers, from Savigny and Puchta to Windscheid and Dern- 
burg, have given the Germans the most admirable body of 
systematic legal literature that has ever been produced. In 
England, the attempt to present the whole law systemati- 
cally was made but once before the time of Blackstone, 
namely, by Bracton. Bracton was a judge, but he borrowed 
the whole framework of his treatise from Azo, an Italian law 
professor. Blackstone was a university professor, and his 
commentaries were prepared as lectures. In this country the 
systematic treatises of Story and of Kent grew out of aca- 
demic instruction. 


Philosophical theories of law demand our attention only 
in so far as they have strongly influenced or are strongly in- 
fluencing the movement of law or of politics. 

The life of man, the Stoics said, is but a part of the uni- 
versal order. For the individual and for the state there are 
eternal and immutable natural laws with which human con- 
duct and human laws should be in harmony. As regards 
human law, it will be noticed that this theory bears a singular 
resemblance to the orthodox judicial doctrine, according 
to which every rule of law laid down in a judicial decision 


358 Jurisprudence 


existed before it was discovered and enunciated. The 
natural-law theory gives to this eternal law, if not an ob- 
jective basis or a demonstrable source, at least a name. 
The jurist-judges of the Roman Empire accepted the Stoic 
theory and used the name; and when a new rule was needed 
for the decision of a novel case, they drew from natural law 
the rule that seemed to them desirable. The medizval 
church accepted the natural-law theory, adding the explana- 
tion that the natural order was simply a part of the divine 
order, so that when divine revelation was lacking the divine 
will was discernible as natural law. In the Roman Church 
as in the Roman Empire the discovery and the interpreta- 
tion of the natural law were wholly in the hands of authorized 
experts. 

Sporadically discernible in the ancient world is a theory 
that natural law is something more than a reservoir from 
which supplementary rules may be drawn when needed, 
that it is a superior law, and that human law that is not in 
harmony with natural law is of no authority. No Roman 
lawyer entertained this essentially anarchic theory. It re- 
ceived no countenance from the medieval church as re- | 
garded ecclesiastical law; but it was accepted by the church 
as regarded secular law. Such law was void not only when 
it was contrary to the revealed will of God as interpreted 
by the church, but also when it was contrary to natural law 
as interpreted by the same authority. When in the six- 
teenth and following centuries it came to be generally held 
that neither church nor state had exclusive authority to in- 
terpret the divine will or the natural law, the theory that 
natural law was superior to positive law developed all its 
latent dynamic qualities. Natural-law theories were em- 
ployed to legitimize revolution. “Js and ought to be” was 
the revolutionary formula for the assertion of every pre- 
viously unrecognized right. 

The reaction in favor of constituted authority produced 
both the positivist and the historical theories of law, or at 
least led to their more precise formulation. The positivist 


Juris prudence 359 


theory, as formulated by Hobbes, was a direct result of 
the English revolt against the crown. Hobbes did not deny 
the existence of natural law, but he asserted that it was not 
“law proper.” The law of nature, he neatly remarked, “ is 
become of all laws the most obscure, and has consequently 
the greatest need of able interpretation.” Only the sover- 
eign or the judges to whom he delegates authority are com- 
petent interpreters. This of course is the theory which was 
implicit in the Roman jurisprudence, but Hobbes was the 
first to make it explicit. 

The historical theory was formulated in the reaction 
against the French revolution. The historical school found 
its antidote to the natural-law theory, not in the will of the 
sovereign, but in the authority of the past. According to 
this theory, presented in the field of public law by Burke, 
formulated as applicable to all law by Savigny, law is not 
made, it grows. ‘The judge who declares it, the legislator 
who seems to make it, are simply interpreters of the national 
sense of right; and this in its turn is a product of the nation’s 
entire historical existence. 

To a certain extent the historical school also represents, 
at least in English-speaking countries, a reaction against 
the positivist school; less indeed against the theories set 
forth by Hobbes than against those formulated by the so- 
called “ analytical”’ jurists. Confusing, as did Hobbes him- 
self, the state with the government and finding sovereignty 
not in the crown, as did Hobbes, but in Parliament, the ana- 
lytical jurists have always been inclined to regard legisla- 
tion as the normal source of ‘law proper.’ Maine and 
other English adherents of the historical school have not 
only rehabilitated judge-made law, but they have restored 
custom to its ancient (and perhaps unduly exalted) dignity 
and importance. 

Whether it is admissible to speak of a comparative school 
of jurisprudence, in the sense in which we speak of the 
natural-law school or of the historical school, may perhaps 
be disputed. It may be urged that comparative jurisprudence 


360 Jurisprudence 


has produced no distinct theory of law. In the writings of 
Jhering, however, we find an interesting and, I think, typical 
reaction against the historical theory as formulated by Sa- 
vigny. Without for an instant denying that law is a histori- 
cal phenomenon, Jhering insists that it is not wholly nor 
even mainly a national product. Even national law is in 
the main a world product. The history of law, like the 
history of civilization, is a history of borrowings and of as- 
similations. Further, Jhering vehemently denies that law 
grows and asserts that it is and always has been made. It is 
a product of conscious and increasingly determinate human 
will. In this last assertion Jhering approaches the position 
of the positivists, but he lays less stress than they on the 
authority by which the rule is established, emphasizing as 
essential to the concept of law the possibility of enforcement. 
Noting the assertion of a contemporary writer that a certain 
custom was really law, only it was not enforced, Jhering 
replies: ‘We might as well say: This is fire, only it does 
not burn.” 

Each of these theories represents a partial truth. Many 
of the contradictions disappear when we realize that the 
natural-law theorists and historical jurists are _ pri- 
marily interested in the substance of legal rules, the ana- 
lytical jurists and the other positivists in the legal quality 
of the rules. 


The historical study of law did not originate in the his- 
torical school of jurisprudence, nor were the laws of differ- 
ent peoples first compared when the comparative school 
formulated its theories. The extent to which law has always 
rested on precedents has always made it necessary for the 
lawyer to look back; and he has always been ready, if he 
could not find a satisfactory precedent in the near past, to 
look back as far as any existing record or tradition has made 
retrospect possible. The use of the historical method in 
legal literature is also very old; and even that type of his- 
tory which was recently described, in the non-technical lec- 


Jurisprudence 361 


ture on history, as ‘morphogenetic ” is distinctly visible in 
the Institutes of Gaius, written for the use of first-year law- 
students more than seventeen hundred years ago. Resusci- 
tated by Cujacius in the sixteenth century, imbued with a 
due sense of its own importance by Savigny in the nine- 
teenth century, morphogenetic history has been as assidu- 
ously cultivated by lawyers as by any other body of scien- 
tific men. The comparative method is, if anything, older 
than the historical. The story that, in the fifth century be- 
fore Christ, when the Romans were thinking of putting their 
own laws into written form, they sent to Greece for a tran- 
script of the laws of Solon, may not be true; but the fact 
that the story was believed in Rome in the early Empire is 
significant. In fact the Roman lawyers were actively en- 
gaged in the last two centuries of the Republic, in studying 
and comparing the laws and customs of all the Mediterranean 
peoples, in order to establish a uniform commercial law — 
a problem which they solved with such success that the com- 
merce of the world has ever since been governed, in the 
main, by the rules which they then formulated. Historical 
and comparative study of the law is prosecuted to-day on 
a more extensive scale and by more scientific methods than 
in any previous period, but these studies are new things only 
in the spirit in which they are being carried on and in the 
way in which they are now combined. 

Legal history is being studied not only for the elucidation 
of existing law but for its own sake. It has become a part 
of general history, and one of the most essential parts. In 
political history its importance has long been recognized; 
in social history its significance is still imperfectly appre- 
ciated. For many obscure periods of history, the legal 
material is the fullest that we possess and by far the most 
trustworthy. The interpretation of the legal material re- 
quires special training, but the results to be gained are well 
worth the labor. In the course of time the synthetic historian 
will become aware that the legal material is that which he 
can least afford to neglect; that without the law of prop- 


362 — Jurisprudence 


erty and of contract, of family and of inheritance, of crimes 
and of torts, social history is as invertebrate and flabby as 
is political history without constitutional law. 

Comparative legal study also is carried on to-day, not 
only for the practical suggestions which the legislator may 
derive from the accumulated and digested experience of 
other nations, but for its own sake. It has become a branch 
of the new science of society, and one of the sturdiest and 
most fruitful branches. 

New also — an invention of our time — is the combination 
of the historical with the comparative method; and the re- 
sults in every field of social science have been surprisingly 
rich. The comparative study of early institutions has been 
actively prosecuted during the last two generations, philolo- 
gists and jurists, anthropologists and ethnologists, working 
side by side; and it is not too much to say that our con- 
ceptions of the beginnings of civilization have been revolu- 
tionized. Comparative work in the later stages of legal de- 
velopment promises a rich harvest. 

These lines of study have carried the jurist far away from 
the practical tasks of interpreting and developing the law 
of his own time and his own people; and yet we are begin- 
ning to see that some of the results attained are of practical 
value. A vantage ground is being gained from which the 
existing law of each nation may be objectively examined 
and criticised. It is becoming more and more possible to 
see how much of any existing legal system is dead or mori- 
bund, how much is vital. It is also becoming possible to 
see in what respects the law of each nation is in advance of 
other systems, and in what respects it is suffering from re- 
tarded development. 


These studies, moreover, are preparing us to meet the 
great problem of the future—that of establishing world 
order and assuring the conditions of world progress. Even 
in the most progressive nations there are many unsolved 
social problems; but the world problem is forcing itself 


Jurisprudence 363 


more and more insistently upon our attention; it will not 
be evaded or postponed. 

The problems of world order and world progress can 
not be solved by international morals alone. In the inter- 
national community, the law of the diminishing pressure 
of widening opinion is conspicuously verified; the influence 
of world opinion upon the rulers and peoples of the single 
states is very much weaker than the influence of national 
Opinion upon wants or group action; and the triumph of 
world morals over national morals can be secured only 
through international law. Rudimentary as this law is, it has 
already secured important gains. It has suppressed the 
slave-trade; it has forced the opening of all doors to world 
commerce; it has established the freedom of the open and the 
narrow seas; it has secured to all men the free use of the 
great navigable rivers of the world. Civilization is being 
carried into the backward portions of the world through 
the agency of the single national states, but international 
law is beginning to define the powers and duties of the states 
which undertake this mission. 

In spite of the highly refined character of many of its 
rules, international law has as yet hardly reached the stage 
of development which European tribal law had reached in 
a prehistoric period; but the development is in rapid prog- 
ress. In international arbitration the world has taken the 
first steps towards international adjudication, but arbitra- 
tors have as yet no greater authority than is given them by 
the voluntary submission of the parties. World legislation 
is still in the contractual stage of development; it comes into 
existence only by unanimous agreement; an international 
congress is a Polish diet with the liberum veto. International 
conventions between great groups of states are, however, 
becoming increasingly numerous and important, and these 
conventions are reaching more and more into the field of 
commercial relations; besides the public law of nations a 
conventional private law of the world is in process of con- 
struction. The social force which is necessary to transform 


364 Jurisprudence 


international law from a body of usages and agreements, sup- 
ported only by moral sentiment, into ‘‘ law proper ” exists 
in the concert of the powers. This force has been exercised, 
thus far, only against backward or feeble states; but every 
case in which it is exercised establishes a precedent. All 
the essential agencies of legal development exist; they are 
becoming increasingly active; and it can hardly be doubted 
that the development will be more rapid in the next three 
generations than in the last three centuries. 

At a similar stage in the development of tribal law the 
task of interpreting and guiding the social will was every- 
where in the hands of priests; it was at a later period that 
the task was transferred to secular law-finders. The world 
of to-day has many religions; it will listen to the secular 
jurist alone. It has been listening to him, largely accept- 
ing his rulings and his instructions, since the time of Gro- 
tius, the first of the world-lawspeakers. In the court of The 
Hague it is now replacing the naturally selected unofficial 
expert by the artificially selected official expert, the learned 
judge. In this new laboratory of world-law the bench will 
require the constant assistance of a learned international 
bar, and bench and bar will need all the help they can se- 
cure from international legal literature. For centuries to 
come, perhaps during the whole future existence of the 
human race, there will be ample fields for juristic activity 
within the single nations; but the great task of the juris- 
prudence of the future will be to interpret the social will 
of federated humanity and to express in increasingly accu- 
rate and logical form the universal sentiment of justice. 


IX 
THE JAPANESE CODE AND THE FAMILY. 


JAPANESE law is only beginning to attract the attention it 
deserves. To the student of comparative legal science it is of 
interest by reason of its long history and because of the 
extent to which its development, like that of all important 
legal systems, has been modified by the reception and as- 
similation of foreign institutions. To the student of early 
European law it is of especial value because it shows us in 
present operation that system of ancestor-worship which did 
so much to shape the social and political organization of the 
ancient Mediterranean peoples. 

Japanese law was first made accessible to the occidental 
world by the writings of European and American students 
resident in Japan. These writings were largely translations of 
the older chronicles and laws and were published for the most 
part in the Mittheilungen and Transactions of the German 
and English Asiatic Societies. Among the pioneers were 
Kempermann (1873), Chamberlain (1883), Rudorff (1888), 
Florenz (1892), and Wigmore (1894). During the last 
fifteen years Japanese lawyers, educated in Germany, in 
France, in England, or in the United States, have begun to 
give us the inside view both of Japanese legal history and of 
the new imperial legislation. The earliest of these publica- 
tions were the product of German or of Dutch training in 
research, and in the still scanty literature of Japanese law 
presented by Japanese writers in European languages the 
German treatises continue to outnumber the rest. 

An examination of some of the more recent of these pub- 
lications,* dealing chiefly with the ancient, medieval and 


1 Reprinted from Law Quarterly Review, vol. 23, no. 1, January 1907, 
Pp. 42-67. p 
2 The recent Japanese works on which this article is based are: Hozumi, 
Ancestor Worship and Japanese Law (Tokio, 1901), and The New Japanese 
Civil Code as Material for the Study of Comparative Jurisprudence (Tokio, 


366 The Japanese Code and the Family 


modern law of the family, awakens in the mind of the stu- 
dent who knows anything of occidental legal development 
both interest and perplexity. He finds himself interested in 
the primitive traits which the Japanese family has preserved 
to the present day, in the persistence of the wider ancient 
family and in the compromises by which the modern Japa- 
nese legislator has attempted to reconcile the traditional soli- 
darity of the house with the principles of modern individu- 
alism. The occidental student finds himself perplexed, at 
the same time, by certain apparent contradictions in the 
Japanese accounts of their earliest family organization. 


I 


The great periods recognized by Japanese legal historians 
are (1) the period of indigenous civilization, which termi- 
nated with the reception of Chinese ideas and institutions 
in the seventh century of our era; (2) the period in which 
Chinese culture remained dominant, which closed with the 
year 1868; and (3) the present period of occidental influ- 
ence. A subdivision of the second period is made at the 
close of the twelfth century, when the feudal system was 
fairly established. Until the third period law was not clearly 
differentiated from social ethics; until 1868, indeed, there 
was no word in the Japanese language that expressed the idea 
of a legal right, a fact which indicates that social relations 
were viewed exclusively from the side of duty.* Moreover, 


1904); Asakawa, Early Institutional Life of Japan (Tokio, 1903); Ikeda, 
Die Hauserbfolge in Japan (Berlin, 1903); Tsugaru, Die Lehre von der 
japanischen Adoption (Berlin, 1903); Sakamoto, Das Ehescheidungsrecht 
Japans (Berlin, 1903); Iwasaki, Das jabanische Kherecht (Leipzig, 1904). 
Among earlier Japanese publications the writer has examined: Kishi, Das 
Erbrecht Japans (Gottingen, 1891) ; Araki, Japanisches Eheschliessungsrecht 
(Gottingen, 1893). Among publications by occidental scholars: Chamber- 
lain, Preface to translation of Kojiki, in Transactions of the Asiatic Society 
of Japan (Tokio, 1883) ; Weipert, Familien- und Erbrecht, in Mittheilungen 
der deutschen Gesellschaft fiir Natur- und Volkerkunde Ost-Asiens (Tokio, 
1890) ; Gubbins, The Japanese Family System, Introduction to translation 
of the Civil Code of Japan, pt. ii (Tokio, 1899). As regards the existing law, 
the translations of the Civil Code by Gubbins and by Lonholm (Tokio, 
1898) have been consulted. 

3 Kishi, op. cit., pp. 10, 11; Hozumi, Civil Code, pp. 26, 27. The ad- 
mirable word now used, “ken-ri” or “ power-interest,” was coined by Dr. 


The Japanese Code and the Family 367 


the so-called laws of the emperors and of the feudal princes 
were not addressed to the people; they were kept secret 
from the people.* They were instructions addressed to 
subordinate officials. Those which touched upon what we 
should regard as legal relations contained, of course, what 
we should call legal rules: 7.e., they set forth the principles 
according to which justice was to be administered in contro- 
verted cases. In the second part of the second period, from 
the close of the twelfth century until the latter part of the 
nineteenth century, the feudal principalities were independ- 
ent in legislation and in adjudication, and the development 
of law and custom was, as in the European middle ages, par- 
ticularistic. In 1867 Japan had as many divergent laws and 
customs as existed in France or in Germany a century earlier. 
The written laws of some three hundred principalities were 
modified by local customs of even more restricted validity, 
and across the territorial laws and customs there ran, as in 
continental Europe down to the French Revolution, well- 
defined class distinctions. 

Since the re-establishment of the imperial supremacy in 
1868 a common national law has been established. This 
result has been attained not by the gradual development of a 
settled practice in central courts of last resort, as in imperial 
Rome and in Norman England, but by the more rapid 
process of legislation, as in modern continental Europe. The 
Japanese imperial legislation of the closing decades of the 
nineteenth century, culminating in the civil code of 1808, 
has effected at the same time a sweeping reception of West 
European law. Hozumi characterizes it as a reception of 
Roman law: Japanese civil law, he says, has “‘ passed from 
the Chinese family to the Roman family of law.” ° 


Tsuda and was introduced in 1868 in his treatise on Western public law. 
Tsuda’s analysis of a right into the elements of power and interest was thus 
almost contemporaneous with, but apparently independent of, Jhering’s well- 
known definition of a right as a rechtlich geschutztes Interesse. 

4 Hozumi, Civil Code, pp. 19, 21. 

5 Hozumi, Civil Code, p. 19. According to Hozumi’s classification of 
“families” of law, this statement is correct; but in his classification he 
confuses historical and present conditions, distinguishing, among others, a 


368 The Japanese Code and the Family 


In the Japanese reception of West European law it is in- 
teresting to observe that, as in the reception of the law-books 
of Justinian in medieval Europe, the completed formal re- 
ception was preceded by a theoretical or scientific reception. 
The whole process was startlingly rapid; Japan passed in 
single years through stages which in medieval northern 
Europe extended over generations; but the stages were the 
same. In the first stage the schools took the leading part. 
Japanese students absorbed foreign law at Paris and at the 
English Inns of Court, at Leyden, Leipzig, and Berlin, just 
as the North Europeans, seven centuries earlier, had ab- 
sorbed Roman law at Bologna and other Italian Universi- 
ties. Almost simultaneously occidental law began to be 
taught in Japan. In a separate law school attached to the 
department of justice and in two or three private law schools 
French law was taught, and also “ natural law.” ‘This latter 
“law,” it is pretty clear, was simply general west European 
law viewed from a French angle. English law was taught in 
the Imperial University of Tokio from 1874. In 1887 legal 
instruction in the University of Tokio was reorganized in 
four sections: English law, French law, German law, and 
“political science.” ° Simultaneously, as in the theoretical 
reception of Roman law in medieval Europe, there was an 
attempt to popularize the foreign law by translations and 
treatises in the native tongue. In 1870 was established a 
governmental bureau for the “ investigation of institutions,” 
and one of the first products was a translation of the French 
codes.’ On the heels of this scientific reception came the 
practical reception. In 1875 a law was issued providing 
that judges should decide civil cases according to the express 
provisions of written law and, in cases where there was no 


Roman, a Germanic and an English family (p. 16), but recognizing no 
French or Romance family. As a matter of fact, English, French, and 
German law, as they exist to-day, are blends of Germanic and Roman law 
in varying proportions; and in borrowing from existing occidental systems, 
Japan has joined, not the Roman, but the Roman-German or West Euro- 
pean family of law. So Ikeda, op. cit., pp. vii, viii. 

6 Ibid., p. 8. 7 Hozumi, Civil Code, p. 6. 


The Japanese Code and the Family 369 


such written law, according: to custom. In the absence of 
both written and customary laws, they were to decide accord- 
Ing to the principles of reason and justice. This law flung 
wide open the door for the ingress of foreign law. . . . The 
tapidly changing circumstances of Japanese society brought 
many cases before the courts for which there were no express 
rules, written or customary, and the judges naturally sought 
to find out “ the principles of reason and justice ” in western 
jurisprudence. The older members of the bench, who had 
not been systematically taught in western jurisprudence, 
consulted the translations of the French and other Euro- 
pean codes, while the younger judges, who had received 
systematic legal education in the universities, either at 
home or abroad, and whose number increased from year 
to year, consulted western codes, statute books, law reports 
and judicial treatises, and freely applied the principles of 
occidental jurisprudence which in their opinion were con- 
formable to reason and justice. Blackstone, Kent, Pollock, 
Anson, Langdell, Windscheid, Dernburg, Mourlon, Baudry- 
Lacantinerie and other textbooks and the numerous com- 
mentaries on European codes, statute books and law reports 
were looked upon as repositories of just and reasonable 
principles and supplied necessary data for their judgments. 
In this manner occidental jurisprudence entered our country, 
not only indirectly through the university and other law 
colleges, but also directly through the bench and the bar.* 


From 1868 onward imperial legislation also was active, 
and special laws effected or accelerated the reception of spe- 
cial institutions or rules borrowed from Western Europe. 
More general legislation, i.e., codification, was hastened by 
the desire of the Japanese government to abolish the privi- 
leges of foreigners and to subject them to the territorial law, 
and by the counter demand of the foreign governments that 
the territorial law should be such as their citizens could com- 
prehend and respect.’ In 1870 a penal code was published; 
in 1880 appeared a new penal code and a code of criminal 


8 [bid., pp. 18, 19. 
9 Tbid., pp. 5, 6; Ikeda, op. cit., p. 149. 


370 The Japanese Code and the Family 


procedure; in 1890 a new code of criminal procedure, a code 
of civil procedure, and a commercial code; in 1890-1891 a 
civil code, which never went into operation; in 1896 and 
1898 the present civil code; and in 1899 a revised commercial 
code. 

In its first stages the Japanese reception of European law 
seemed likely to go too far, as did the German reception of 
Roman law at the close of the middle ages. There was a 
tendency to accept the foreign law too eagerly and too thor- 
oughly, with an accompanying sacrifice of vital elements of 
indigenous custom. On this point Sakamoto writes: 


On the one hand, the existence of open places in the 
[written] private law and the lack of any comprehensive 
presentation of the prevailing customary law and, on the 
other hand, the study of the foreign law, especially the 
French and later the English and German, induced advo- 
cates and judges to apply to legal controversies foreign law, 
preferring it to native custom, and in particular to apply 
that foreign law in which they had been trained and which 
they accordingly regarded as the only law that was real 
value.*° 


The same tendency was displayed in the first drafts of a 
civil code. These were so largely based on the French civil 
code as to arouse opposition, not only on the part of Japa- 
nese who had studied English or German law, but also on the 
part of some who had been trained in French law. The 
critical period of the struggle was reached in 1891, when a 
code framed in large part by Professor Boissonade, a French 
jurist, was adopted by the Council of State, to go into force 
in 1893. In the ensuing agitation for postponement and 
revision, Hozumi, who had studied in the English Inns of 
Court and later in German universities, took a leading part. 
In a treatise on codification he declared that it was a dis- 
graceful thing that the work of preparing a national code 
should have been entrusted to a foreigner. In the newly- 


10 Sakamoto, op. cit., p. 49. 


The Japanese Code and the Family a7% 


established Japanese parliament such an appeal to national 
sentiment found ready sympathy. In 1802 the enforce- 
ment of the code of 1891 was postponed, and a committee 
of revision was appointed of which all the members were 
Japanese. A subcommittee consisting of three law profes- 
sors, Hozumi, Ume, and Tomii, was charged with the work 
of revision. The code submitted by them was accepted with 
some modifications by the full committee and by the Japa- 
nese parliament, 1896-1898, and is now in force. It was not 
a mere revision of the code of 1891, but a new and independ- 
ent work. All the principal codes of the modern world were 
examined, but Japanese conditions and customs were kept 
steadily in view. In its general arrangement the Japanese 
code follows German models (Pandekten-System): in its 
substance it is a product of comparison and selection.” 
Hozumi characterizes the struggle between the supporters 
of the code of 1891 and the revisionists as a conflict between 
the school of natural law and the historical school, and com- 
pares it with the famous German controversy between Thi- 
baut and Savigny. It more closely resembles, however, the 
later German controversy between the Romanistic and Ger- 
manistic schools; for in Japan both parties were in favor of 
codification, in order to get rid of particularistic laws and 
customs, and the opposition to the code of 1891 was preémi- 
nently patriotic. 


II 


Of all the social relations with which the new code deals, 
the family remains least affected by occidental influences. 
For this reason, the history and present organization of the 
Japanese family are of special interest to the student of com- 
parative jurisprudence. 

Regarding the earliest organization of the family, the 
writers under review make or accept statements which, to the 
occidental student, seem not merely inconsistent but irrecon- 


11 Hozumi, Civil Code, pp. 6-12; Sakamoto, of. cit., pp. 53, 54; Ikeda, 
op. cit., pp. 148-151. 


372 The Japanese Code and the Family 


cilable. Under these circumstances it seems advantageous 
first to present those statements which seem to be most 
strongly supported by evidence, and which are consistent 
with one another, and then to notice the contradictory state- 
ments and to endeavor to explain their origin. For such 
an analysis, fortunately, the works under review furnish 
sufficient data. 

In the earliest period, before the reception of Chinese ideas 
and institutions, the clan and not the family was the legal 
unit.” Endogamy and exogamy apparently existed side by 
side.** In either case the wife remained with her own kins- 
folk, although a separate house was commonly built for her 
and her children.** The word for wife, skingo or shinso, is 
said to mean “ new building.” *? The husband was appar- 
ently a surreptitious although licensed visitor; the old Japa- 
nese term for marriage, yo-bai, is said to mean “ prowling by 
night.” *° That in unions of this description married women 
were fairly independent of their husbands, or, if one chooses 
so to put it, ‘‘ occupied a higher place than in later times,” ** 
is quite in accordance with all that we know of other peoples 
with similar matrimonial arrangements. The legendary first 
emperor, Jimmu, is said to have “ commanded a vast army of 
male and female warriors,” ** and at a later period there are 
stories of young girls and grown women armed and fighting.” 
Women were capable of holding land in their own right.*° 

That under such circumstances there was no polyandry — 
and there seems to be no trace of it in myth or legend — 


12 Hozumi, Ancestor Worship, p. 44 et passim. Kishi (op. cit., pp. 109, 
20) states that the original land-tenure in Japan was the common cultiva- 
tion of land by entire villages, which represented “families in the wider 
sense.” 13 Weipert, op. cit., p. 100; Asakawa, op. cit., p. 55. 

14 Twasaki, op. cit., pp. 11, 12; Sakamoto, op. cit.. pp. 10-12; Tsuguru, 
op. cit., p. 33, note; Asakawa, op. cit., p. 57; Weipert, op. cit., p. 94. 

15 Sakamoto, loc. cit.; Araki, op. cit., p. 12. 

16 Twasaki, loc. cit. Weipert (op. cit., p. 904) says, on the authority of 
Professor Naito, that the word means “loud calling”; Araki, op. cit., p. 11, 
translates it “ herbeirufen,” and explains that matches were made at rustic 
dances, the man calling to the maid to join him. A legend in Kojiki (Cham- 
berlain’s translation, pp. 20, 21) seems to indicate that in the earliest times 
the woman spoke first. 

17 Hozumi, Civil Code, p. 28. 19 Tbid., p. 105. 

18 Asakawa, op. cit., p. 98. 20 Jbid., p. 73. 


The Japanese Code and the Family 273 


confirms the opinion of those students of primitive institu- 
tions who regard polyandry as an exceptional form of mar- 
riage. Polygyny, however, was common: the position of the 
nocturnal prowler may be compared with that of the occi- 
dental sailor with wives in many ports.”’ 

In such a form of marriage we do not expect to find mari- 
tal or paternal authority; and Ikeda tells us that there was 
no paternal power in the old Japanese law. The word used 
in the middle ages for house-power, katoku, is borrowed 
from the Chinese. The purely Japanese word soryo, which 
came ultimately to be used as equivalent to katoku, meant 
originally the authority which the chief house exercised over 
branch houses ** — that is, it did not signify house-power at 
all, but clan headship. 

Under such conditions we should expect to find relation- 
ship traced only through the mother, and kinship through 
the father ignored. Asa matter of fact, the Japanese legends 
indicate that agnatic brothers and sisters who were born 
of different mothers were permitted to marry one another.”* 
In Nihongi the marriage of an emperor to his half-sister 
(A.D. 434) 1s denounced as criminal, but stress is laid on 
the fact that they were children of the same mother.”* 

The later form of marriage, which gradually became the 
prevalent form — the entry of the bride into the husband’s 
house and kinship group — was borrowed from the conti- 
nent. Buddhism made its way from Korea into Japan in the 
middle of the sixth century of our era; and by the year 624 
there were in Japan 46 Buddhist temples with 1385 priests 
and priestesses.” In the reign of the empress Suiko, 593— 
628, there was an increasing adoption of Chinese political 
doctrines.*° The Reform of 645, which all Japanese writers 

21 So in Kojiki (Chamberlain’s translation, pp. 80, 81) the goddess says 
to the god: “ Thou, indeed, being a man, probably hast on every headland 
a wife, but I, being a woman, have no man except thee.” 

22 |kida, op. cit., pp. 5-7. 

23 So Weipert, op. cit., p. 98. Several of the Japanese writers under 
review allude to these legends, and accept their evidence with obvious re- 
luctance. Cf. Sakamoto, op. cit., pp. 10-12; Asakawa, op. cit., p. 58; Araki, 


Of. at... psx. Tt. 25 [bid., PDi120513.43% 
24 Cited by Asakawa, op. cit., 0. 53. 26 [bid., p. 253. 


374 The Japanese Code and the Family 


treat as the beginning of a new era, was “ a confessed adapta- 
tion . . . of Chinese political doctrines and institutions.” 
Chinese ethics also made their way into the islands; and the 
Confucian doctrines of the wife’s duty to the husband and 
the child’s duty to the father seem to have exercised the 
greatest influence in transforming the Japanese family — 
in developing the patriarchal household and in securing the 
recognition of agnatic kinship. We gain a clear view of the 
conditions which obtained before the Reform of 645 in an 
imperial decree of 646, which undertook to establish a new 
system of local government, based on local kinship groups 
(ko). In this decree, as is usual in revolutionary pronuncia- 
mentos, the old usage is treated as mere abuse: the heads of 
the local clans, it is declared, have so divided the people that 
husband and wife and father and child bear different clan 
names, and that (agnatic) brothers are assigned to different 
families.** As a bit of evidence, this confession of the im- 
perial legislator outweighs all the myths and legends above 
cited,”® and is equalled in value only by certain survivals of 
the older order which are noted below. 

The preceding sketch of the earliest Japanese family is not 
to be found in all its details in any of the writings under re- 
view: it is pieced together from scattered statements. And 
nearly all of the Japanese writers and some of the foreign 
writers add other and inconsistent statements. It is asserted, 
for example, that the right of divorce was exclusively 
marital.*° That marriages of the sort above described 
were easily dissolved we may readily believe; but that 
‘the wife was not as free to close the door of her house 
against her husband as was the husband to discontinue 
his visits to the wife seems highly improbable.** It is fur- 
ther stated or assumed by most of the writers under re- 


27 Asakawa, op. cit., p. 4. 28 Tbid., p. 259. 

29 The distinguished sinologist, Professor Hirth of Columbia University, 
informs the writer that the earliest Chinese traditions point to mother-right 
conditions, and he suggests that the Japanese may possibly have borrowed 
even their legends from China. Cf. Chamberlain, Kojiki, preface, pp. Ixviii— 
Ixx. 80 Sakamoto, loc. cit.; Iwasaki, loc. cit. 

31 Hozumi, Civil Code, treats the one-sided marital power of divorce as 
a characteristic feature of the second or Chinese period. 


The Japanese Code and the Family 375 


view that the primitive Japanese household was under 
paternal sway, and that the headship of the family and its 
property regularly passed, as in the medieval period, from 
father to son. It is stated by one writer that a distinc- 
tion was drawn, even in the earliest period, between the 
first or principal wife and other wives, and that the son of 
the first or principal wife regularly succeeded to the father’s 
position.** Adoption is said to have been practised, as in 
the medizval period, when there was no male heir.*® 

When we examine the evidence adduced in support of this 
latter group of statements, we find that it is drawn from the 
history of the imperial dynasty, as set forth in certain chroni- 
cles which date from the early years of the eighth century — 
Kojiki and Nihongi. Outside of the imperial family, there 
is no evidence regarding the order of succession to the head- 
ship of clan or of household.** In Kojiki and Nihongi we 
have a complete list of Japanese emperors from 660 B.c. to 
592 A.D., and the succession seems to have passed regularly 
from father to son or, in default of a son, to an agnatic 
brother or nephew.*’ 

These “chronicles ” are a mixture of myths and legends 
with statements which seem on their face to be historical. 
Kojiki was compiled 711-12 A.D., and purports to rest on 
information orally given by the Emperor Temmu to one 
Hiyo-no-Are, “a person of strong memory,” and subse- 
quently communicated by Hiyo-no-Are to the editors. The 
Emperor is represented as stating that the existing chroni- 
cles *° are largely false and that, if these falsehoods be not 

82 Sakamoto, loc. cit. On the other hand, Weipert, op. cit., p. 94; Araki, 
op. cit., p. 6, and Asakawa, op. cit., p. 54, ascribe this distinction to Chinese 
influence. 

88 Tsugaru, op. cit., pp. 26-33. Chamberlain, Kojiki, preface, p. xli, 
believes that adoption was borrowed from China. , 

84 Ikeda, op. cit., pp. 36-38. Ikeda adds that there are traces in Kojiki 
of an elective headship, but does not indicate the passages on which he relies. 
He thinks that there may possibly have been female headship. In the follow- 
ing (early medieval) period he finds evidence of a certain authority attrib- 
uted to the oldest member of the kinship group, although such member may 
not be the head. 85 [bid., pp. 22-33; Asakawa, op. cit., pp. 56, 57. 

86 Of these alleged earlier chronicles nothing is known. ‘The art of his- 


torical writing is said to have been introduced into Japan ca. 600 AD. Asa- 
kawa, op. cit., p. 109. 


376 The Japanese Code and the Family 


corrected, the foundation of the monarchy will be destroyed. 
He therefore commands that the existing histories be revised, 
‘* falsehoods being erased and the truth determined.” Kojiki 
is especially full and precise as regards events from the 
seventh century B.c. to the fifth century of our era: after 
488 A.D. it begins to lose its narrative detail and it stops at 
the year 628. Its language appears to be the vernacular of 
the time of its composition, and the Chinese characters in 
which it is written are in many instances used phonetically. 
In some instances the meaning of the characters is disputed. 
Nihongi was compiled a few years later, 720 a.p. It is writ- 
ten, Asakawa says, “in a Chinese style as pure and digni- 
fied as its author could make it.” The record purports to 
be based in part on seventh-century sources, and the narra- 
tive grows fuller as it approaches the year 697, at which 
date it closes.*” 

It is universally Bees that Nihkongi is written with 
a pro-Chinese bias, but Japanese scholars think that Kojzki 
is to a considerable extent what it purports to be — a record 
of the genuine traditions of the national life. Chamberlain, 
however, has no doubt that the older history has been falsified 
for political purposes.** When we consider that both Kojiki 
and Nihkongi were compiled a couple of generations after the 
Reform of 645, and when we remember that every success- 
ful revolution in the occidental world, ancient or modern, 
has promptly striven to legitimate itself by falsifying ante- 
cedent history, it can scarcely be doubted that Chamber- 
lain’s view is correct. Even the mythology seems to show a 
reaction against Japanese customs and a bias in favor of 
Chinese views.*® It seems probable that both these chroni- 
cles are revisions of the indigenous tradition in accordance 

37 Cf. Chamberlain, Kojiki, preface; Florenz, “‘ Nihongi,” preface, in Mit- 
theilungen der deutschen Gesellschaft fiir Natur-und Volkerkunde Ostasiens, 
vol. v; Asakawa, op. cit., pp. 7-12. 

38 ‘Chamberlain, loc. Cit., D. xiv; 

39 For example: the story already cited, in vtich a goddess takes the 
initiative in wooing a god, represents the results as disastrous: the progeny 
was wholly unsatisfactory. Not until the courtship began de novo and the 


god spoke first were proper children born. Kojiki, Chamberlain’s transla- 
tion, pp. 20, 21. : 


The Japanese Code and the Family aT 


with Chinese ideas, and that Kojiki, with its alleged imperial 
inspiration, its interesting figure of the old man of strong 
memory and its use of the vernacular, is the more adroit 
of the two reconstructions. 

The list of emperors given in these chronicles and the 
dates of their reigns are things which only Japanese writers 
can take seriously.*? From 660 B.c. to 592 A.D. but thirty- 
two rulers are listed, which makes the average length of the 
single reign nearly forty years.** In those twelve and a half 
centuries we find but one female ruler — the Empress Jingo, 
201-269 A.D. — while in the following 166 years (592-758 
A.D., that is, in the period subsequent to the introduction of 
the art of historical recording) there were no less than six 
empresses, who ruled collectively for 75 years. The fact 
that seems really to require explanation is that the corrected 
chronicles of the prehistoric period failed to eliminate the 
Empress Jingo; and the explanation seems to be that it was 
in her reign that Korea was conquered by Japan, and that her 
name was too firmly embedded in the memory of the nation 
to permit her to be ignored. All that could be done was to 
regularize her position, from a Chinese point of view, by 
making her a mere regent. Accordingly she occupies the 
throne as the representative of an infant emperor and rules 
in this capacity for 68 years. The six female reigns between 
592 A.D. and 758 A.D. are similarly treated as regencies or 
are declared to be usurpations. Two of the usurpations 
present particularly interesting features.*” The Empress 
Kokyoku, 642-644 and 655-661, occupied the throne at 
first as widow of a deceased emperor (so the official history 
puts it, but we may doubt whether the deceased emperor 
did not really reign as her consort), and when she went into 
voluntary retirement she was succeeded by her own son to 
the exclusion of his elder half-brother, the son of the pre- 
ceding emperor by another wife. In 748 the father-in-law of 

40 Cf. Chamberlain, Joc. cit., pp. xlix, lil, liv. 

41 During the period of the hereditary shogunate, the average term of 


power was less than sixteen years. 
42 Tkeda, op. cit., pp. 19, 20, 25, 26, 28, 29. 


378 The Japanese Code and the Family 


the reigning emperor forced his son-in-law to abdicate in 
favor of his daughter’s daughter. If things that smack 
so strongly of mother-right could be done when Chinese 
ideas were becoming dominant, what may not have been 
done in those earlier centuries of which the tradition has 
been corrected in Kojiki? 

It seems clear that the Japanese writers are hampered in 
their reconstruction of the primitive Japanese family by 
their disinclination to question the work of the Emperor 
Temmu and thus possibly to imperil “the foundations of 
the monarchy.” It is clear, too, that they are unwilling to 
admit that the worship of male ancestors was not always a 
part of the original national religion, Shinto. This religion, 
which seems to rest primarily on the sentiment of awe in 
face of all that is marvelous, which has always maintained 
itself against or in combination with Buddhism, and which 
has enjoyed especial favor and protection at the hands of 
the government since 1868, is now largely a system of ances- 
tor-worship, and almost all the writers under review assume 
that such was its original character. Peculiarly naive in ex- 
pression, but essentially typical in substance, is Tsugaru’s 
argument to prove that the adoption of male heirs must have 
been customary in the earliest times. He assumes that the 
worship of male ancestors existed from the beginning, that | 
this worship was conducted by men, that the succession to 
the sacral office passed down the male line and that, if the 
male line failed, adoption was necessary. For these as- 
sumptions he gives no reason except that ‘‘ women are des- 
tined by nature to leave their own religious community in 
case of marriage.” ** But if, as he concedes, the wife did not 
enter the husband’s house but remained with her own kin,** 
his theory of ancestor-worship implies the existence of sacral 
family groups distinct from the recognized kinship groups 
and perpetuating themselves according to a different system 
— which seems wholly incredible. It is one of the disad- 
vantages of the life-long inside view of religious institutions 


43 Tsugaru, op. cit., p. 26. 44 Jbid., p. 33, note. 


The Japanese Code and the Family 379 


that the devotee finds them so “ natural ” that he is apt to 
project them into the remote past. For the rest, Tsugaru 
seems to think that evidence of any sort of adoption in the 
earliest period is evidence for every sort of adoption. We 
may accept his assumption that strangers could be taken 
into the clan;*° we may think it probable, as he does, that 
in some cases the visiting husband may have been trans- 
formed into a clan member in good and regular standing; ** 
but that adoption was practised, as in a later period, to per- 
petuate the worship of house ancestors in the male line seems 
wholly inconsistent with the mother-right structure of early 
Japanese society.*” 

Of the forms of ancestor-worship which have grown up in 
Japan, viz., worship of the first imperial ancestor, worship 
of clan ancestors, and worship of house ancestors, it would 
seem to an outsider, relying on the evidence which the Japa- 
nese give us and the analogies of other national systems, that 
only the first two forms could have existed in the earliest 
period. If they existed, the worship of the legendary clan 
ancestor as a clan god was doubtless the older of the two. 
Hozumi thinks that it was the chief bond which held the clan 
together. The clan god, he tells us, was transformed at an 
early period into the “local tutelary god,” ** who shares with 
the first imperial ancestor the honors and oblations of the 
kamidana or god-shelf in every Japanese house. The wor- 
ship of the first imperial ancestor must have been developed 
later than that of the clan ancestors; for in Japan, as else- 
where, the monarchy was primarily military and national 
unity was achieved by conquests.*® This national worship 
was probably developed by analogy from the worship of the 


45 Tsugaru, op. cit., p. 25. 46 Ibid., pp. 31, 33. 

47 Gubbins (Joc. cit., p. iv and note) evidently doubts the primitive 
character of Japanese ancestor-worship, but subordinates his judgment to 
the authority of Prof. Hozumi. Prof. Knox of the Union Theological Semi- 
nary in New York, one of the first occidental authorities upon Japanese 
religion, informs me that he has reached, along different and non-legal lines 
of investigation, the conclusion that ancestor-worship formed originally no 
part of Shinto, but was borrowed from China. 

48 Ancestor Worship, p. 25. : 

49 Sakamoto, op. cit., pp. 17, 18; Asakawa, op. cit., pp. 30, 44 et passim. 


380 The Japanese Code and the Family 


clan ancestors; and through association of ideas the worship 
of the first imperial ancestor produced the theory that all the 
inhabitants of the empire were of one blood.”° In the terri- 
torialized clan, community of blood had already become in 
large measure a fiction, and it was easy to develop a similar 
fiction for the whole empire. Whether the clan gods were 
male or female Hozumi does not tell us; but the first imperial - 
ancestor, worshipped as such to this day, was the sun-goddess 
Amaterasu. 


III 


The complete reception of Chinese views by the imperial 
court in the middle of the seventh century is indicated by the 
character of the imperial legislation during the following 
sixty years. As regards the family organization it is ordained 
that a man shall have but one wife. It is assumed that the 
wife enters the husband’s kinship group and that the headship 
of the group normally passes from father to son. If there be 
no son a male heir is adopted. At the same time these laws 
reveal compromises with the older customs, some of which 
persist to this day. Polygyny is not really abolished; con- 
cubinage is recognized, and in the Taiho code (701 A.D.) the 
concubine is practically a wife of inferior rank. Her children 
are legitimate and have rights of succession.** The husband 
may enter the wife’s household, and when there is no son in 
that household it is expected that he shall do so. This older 
form of marriage is brought into harmony with the new ag- 
natic system by means of adoption, which converts the son- 
in-law into a sacral and legal son. This adoption-marriage 
(muko-yosht) is still common in Japan. 

The new kinship groups (fo) rested, like the Chinese 
family, on the principle that relationship through males 
takes precedence over relationship through females. The 
degrees or “ranks ” of relationship recognized in the im- 
perial laws were based upon the Chinese law of mourning. 

50 Hozumi, Ancestor Worship, pp. 61, 63; Tsugaru, op. cit., pp. 93, 97. 


51 Weipert, op. cit., pp. 107, 108; Araki, op. cit., p. 6; Ikeda, op. Ccit., 
Pp. 195-197. 


The Japanese Code and the Family 381 


It is recognized more or less fully by nearly all the writers, 
Japanese and foreign alike, that this legislation represented, 
to a large extent, aspiration rather than achievement. It is 
fairly certain that it had little operation outside of the im- 
perial family and the families of the nobles; and even in the 
imperial family, as we have seen, agnatic succession was by 
no means firmly established before the middle of the eighth 
century. 

The chief agency in the development of the Japanese 
“house ”’ was feudalism, which grew up in Japan in sub- 
stantially the same manner as in Europe and assumed similar 
forms. In Japan, as in the Frankish empire, the military 
retainers were, originally, dependent members of the lord’s 
household. Entry into such a household took them out of 
their former families, and gradually the older mother-right 
clans were superseded by new military groups.”” When 
offices and fiefs became hereditary, they were heritable only 
by sons, born in the house or brought into it by adoption. 
The legislation of the Shogunate and of the territorial princes 
in the later middle ages gave to the new patriarchal and pri- 
marily agnatic house its complete development. But this 
legislation, again, affected only the military class. 

In the period of transition from the old marriage to the 
new, from the eighth to the thirteenth centuries, we are told 
that marriage was arranged with the utmost secrecy, through 
the mediation of a kinsman of the bridegroom or of the bride, 
and was consummated with equal secrecy in the house of 
the bride. Three days later the marriage was publicly cele- 
brated in the bride’s house. At this celebration the husband 
was formally introduced to his wife’s parents, “to whom, 
up to that time, he may not have been personally known.” °° 
From the fourteenth century on, however, the public cele- 
bration of the marriage preceded its consummation, and the 
celebration took place in the house of the bridegroom. The 
only reminiscence of the older order, according to Araki, 
is found in the fact that, in the chief ceremonial act, the 


52 Weipert, op. cit., pp. 88, 89. 53 Araki, op. cit., p. I5. 


382 The Japanese Code and the Family 


alternate drinking by bride and groom from oe same cup, 
the bride takes the first draught.** 

The statement that the new form of marriage was fully 
established by the fourteenth century °° seems to be true only 
of the noble and warrior classes. Among the peasants and 
the burgesses the new house seems to have developed more 
gradually, mainly through imitation and under the influence 
of Confucian ethics. In these classics ‘‘ bridegroom-entry,”’ 
1.e., the form of marriage which leaves the bride in her own 
family, seems to have persisted; and even where the ultimate 
effect of the marriage was to transfer the wife to her hus- 
band’s house, the marriage was initiated in the older in- 
digenous fashion. In many localities the secret consum- 
mation of the marriage in the bride’s house seems to have 
been usual even in the nineteenth century, the public cele- 
bration, with the removal of the wife to the husband’s house, 
occurring only after days or months of cohabitation. In 
some localities this ceremony took place only when the wife 
was pregnant or after a child had been born.*® Such “ bride- 
children’ were regarded as legitimate.°* Among peasants 
and burgesses, again, muko-yoshi, or the adoption of the 
daughter’s husband, seems to have been far more common 
than in the military class.. The husband of an elder daugh- 
ter was not infrequently adopted as heir to the headship of 
the house, although there were younger sons in the house 
already. In the absence of sons the succession to the head- 
ship might not only vest in a daughter but might be held by 
her after marriage, the husband becoming and remaining a 
subordinate member of the family.°* Of course, however, 
the new marriage tended to prevail over the old in all classes. 
The position of the muko-yoshi or adopted son-in-law became 
more and more difficult; and the position of the husband who 
was not to be house-head, but was to pass from the house- 
hold authority of his father-in-law under that of his own wife, 
was in too violent contrast with the Chinese ideas of feminine 


54 Araki, op. cit., p. 18. 
55 Ibid., pp. 15, 16; Iwasaki, op. cit., pp. 13, 18. 57 Ibid., p. 108. 
56 Weipert, op. cit., p. 99. 58 Ikeda, op. cit., pp. 126, 129. 


The Japanese Code and the Family 383 


subordination and marital supremacy to be in any way satis- 
factory.”® 

Inasmuch as the new marriage was not worked out in 
Japan but was borrowed in a fully developed form from 
China, we should not expect to find the intermediate stages 
of wife-stealing and wife-purchase which have elsewhere at- 
tended the evolution of marital right. The new Japanese 
marriage, like the old, was apparently consensual from the 
outset, 7.e., it rested simply on the agreement of the house- 
holds and of the parties concerned. The evidence in favor 
of capture-marriage, collected by Prof. Naito, and set forth 
by Weipert, is destructively criticised by Araki; °° and of the 
other writers under review Sakamoto alone supports the 
Naito-Weipert theory. ‘The evidence produced by Saka- 
moto is valueless: he cites a legend, which shows traces of 
Chinese origin, and modern laws (1665 and 1863) against 
abduction.** Of purchase-marriage there is no evidence 
whatever; ceremonial exchange of gifts, which occurs in 
connection with every type of marriage, of course proves 
nothing. 

In the new marriage, with its fully developed marital au- 
thority, the right of divorce belonged practically to the hus-: 
band alone. In the feudal period, before 1868, the wife’s 
right to a divorce without the husband’s consent was recog- 
nized in a very limited class of cases,*’ and the chief ground, 
abandonment, hardly belongs in this class. Concubinage, 
although it had fallen into disrepute, was legally permissible 
until 1880, and the son of a concubine took precedence over 
a legitimate daughter in the succession to the headship of 
the house.* 

In its final development, the Japanese house (ive) was 
ruled, like the Roman family, by a single head, who held 
and managed all the property, and exercised over the other 
members of the house all the personal authority which in 

59 Cf. Araki, op. cit., p. 8; Tsugaru, op. cit., pp. 6, 7. 

60 Cf. Weifert, op. cit., pp. 94, 95; Araki, op. cit., pp. 9, 10. 


61 Sakamoto, op. cit., pp. 2-4. 62 Tbid., pp. 26, 27, 40, 41. 
63 Araki, op. cit., pp. 5-7; Ikeda, op. cit., pp. 108, 195-197. 


384 The Japanese Code and the Family 


more advanced systems is exercised by parents over minor 
children. Unlike the Roman family, the Japanese house 
was not divided upon the death of its head. When the head- 
ship was vacated, either by death or by the retirement of 
the head from the active direction of the affairs of the house, 
the authority over the undivided house passed to a single 
successor. ‘The succession was not exclusively agnatic: it 
was based on primogeniture with a preference of males. In 
default of a male successor the headship might vest in a 
female. If such an heiress were already married her hus- 
band was already an adopted member of the household; if 
she married after her accession to the headship her husband 
entered her household. In either case, at least in the noble 
and warrior classes, the headship passed to the husband; 
but since he held it by right of his wife, he lost it in case of 
divorce.** Like the Roman family, the Japanese house in- 
cluded the wife and children of the head, his widowed 
mother, and his unmarried sisters; unlike the Roman family, 
it might also include his brothers and uncles, with their wives 
and children. If the succession to the headship had passed 
as a result of abdication (inkyo), the Japanese house might 
include the father and even the grandfather of the head. 
Unlike the Roman family, again, the Japanese house was, 
until 1868, the ultimate unit of public as well as private law. 
Only house heads could hold office.®° . 

The chief bond of unity in this household, we are informed, 
was (and still is) the worship of the family ancestors. 
The headship of the house is primarily a sacral office, and the 
perpetuation of the household is chiefly important for the 
maintenance of the family sacra. As among other ancestor- 
worshipping peoples, adoption was originally and is still 
usually resorted to only in the absence of a natural successor 
to the sacral headship. In the selection of an artificial suc-. 
cessor persons of kindred blood were always preferred, be- 
cause ‘‘ the spirit does not receive the offerings of strangers.” 


64 Araki, op. cit., p. 8. 
65 Hozumi, Civil Code, pp. 43, 64; Ikeda, op. cit., p. 134. 


The Japanese Code and the Family 385 


In the Taiho code the adopted son must be a kinsman within 
the fourth degree. In 1615 it was made possible to adopt 
any person of the same family name. Before the end of 
the seventeenth century it was decided that a son might be 
adopted from another clan. This was justified on the ground 
that all Japanese were of kindred blood.” 


IV 


The new Japanese legislation represents a compromise 
between the strict house system and the occidental family 
system. It represents also a long step towards individual- 
ism; for public rights and duties have been made independ- 
ent of the house organization, and property rights and liabili- 
ties are attributed not only to all the adult male members of 
the house but also to married women and to minor children. 

Formally, the house is still the legal unit. Every Japa- 
nese is registered as head or subordinate member of a house; 
and, as in Roman law, every person who was independent of 
household authority was designated as head of a family, so 
in the existing Japanese law every isolated individual — the 
illegitimate child, who is not admitted either into the father’s 
house or into that of the mother, and the person who is re- 
leased or expelled from one house without gaining admission 
to another — is registered as ‘‘ establishing a new house.” °’ 
A person cannot at the same time be member of two houses.”* 

The house is primarily a religious association, and the 
head is its priest. The ownership of the genealogical Tec- 
ords of the house, of the articles used in household wor- 
ship, and of the ancestral tombs, passes in every case 
with the headship of the house.®? The heir to the head- 
ship is heres necessarius in the old Roman sense: he has 
not the right of renunciation that is accorded to the heir 
of mere property.”° Escape from the burden of house 


66 Hozumi, Ancestor Worship, pp. 61, 63; Tsugaru, Adoption, pp. 93, 97. 

67 Civil Code, 88 733, 735, 749; 742, 764. 

68 This rule is recognized by implication throughout the code. A corol- 
lary of the rule is expressly recognized in § 754. 

69 Civil Code, § 987. 

70 § 1020. 


386 The Japanese Code and the Family 


headship is made more difficult than it was in Roman law: 
the presumptive heir may not leave the house even with the 
consent of its head;** nor may the person who has succeeded 
to the headship resign it until a qualified successor is ready 
to accept it, nor even then, as a rule, before he has reached 
the age of sixty.” An exception to these rules is, however, 
recognized when it becomes necessary for the presumptive 
heir or actual head of a branch house to assume the succes- 
sion to the headship of the chief house;“* and none of the 
foregoing restrictions apply to the person who has established 
a new house: he may at any time abolish it and become a 
member of another and older house.** The relation of these 
rules and exceptions to the dominant religious principle is 
obvious. In a new house there are no house ancestors to 
worship, and no sacred duty binds its founder to its main- 
tenance; but he who has become head of a house by suc- 
cession, or is legal heir to the headship of a house, has or 
will have house ancestors. If, however, the house is a newer 
branch house, the duty to the older and principal house may 
become paramount. 

Thoroughly in accordance with ancestor-worship is also the 
rule that the headship of the house is vacated if the head 
loses his Japanese nationality.”? We have already noticed 
the theories that all the people of Japan are members of one 
great family, bound together in the worship of the first im- 
perial ancestor, and that ‘“‘ the spirit does not receive the 
offerings of a stranger.” If a Japanese ceases to be a mem- 
ber of the collective national family, he necessarily becomes 
a stranger in his own house and to its ancestors. It seems 
probable that the identical Roman rule, by which capitas 
diminutio media entailed capitis diminutio minima originated 
in similar religious ideas. 

In addition to its sacral significance, the Japanese house 
has protective and disciplinary functions. The head of the 
house is bound to support its needy members and to edu- 


12S 74a ne 876m 
72 §§ 752, 762. 15: §964))Cht- 
73 88 744, 753, 762. 


The Japanese Code and the Family 387 


cate their children; although at present, when all the prop- 
erty of the household group is no longer held by the head, his 
duty is secondary to the reciprocal duties of husband and 
wife and of ascendant and descendant.’* In the absence of 
a natural or testamentary guardian, the head of the house 
is the legal guardian of minors and of persons interdicted 
from the management of their own affairs.” Without the 
consent of the head, no person can come into the house, ex- 
cept the legitimate children of its members, nor can any 
member sever his connection with the house. From this 
principle it follows, in particular, that the consent of the 
heads of the houses affected is necessary in all cases of mar- 
riage and adoption, without regard to the ages of the parties.”® 
The head of the house, moreover, determines the residence 
of all its members.’® It should be noted, however, that the 
marriage or adoption which takes place without the consent 
of the head or heads concerned is not invalid,*® and that the 
subordinate house-member who changes his residence with- 
out such consent is not brought back to the residence as- 
signed to him. The extreme penalty which attaches to such 
disregard of the authority of the house head is expulsion 
from the house.** 

Succession to the headship of the house vests primarily 
in a lineal descendant of the last head. Preference is given: 
‘(1) to the nearest in degree; (2) to males; (3) to legiti- 
mate children; (4) to recognized illegitimate children; (5) 
as between persons who in other respects fall in the same 
class, to the senior in age. Legitimized children and adopted 
children are in the same class with legitimate children born 
in the house, but as regards seniority they are treated as if 
born at the moment of legitimation or adoption.*’ If there 
be no lineal descendant or adopted child capable of succeed- 


76 8§ 747, 955. 7 Vide, infra. 78 88 741, 750. 

79 8 740. 80 §8 776, 849. 81 §§ 741, 749, 750. 

82 §§ 970 et seg. The preference of the nearest in degree, taken alone, 
would vest the succession in a younger child to the exclusion of the child 
of an elder predeceased child; but the principle of representation 1s ex- 
pressly recognized in § 974. 


388 The Japanese Code and the Family 


ing, the head of the house may appoint a successor by act 
inter vivos or by testament.®® Failing such appointment, 
the law makes very elaborate and complicated provisions for 
the choice of a successor.** The organ of choice, in the 
majority of cases, is the family council (see below), and 
the choice is made, primarily, from among the members of the 
house, the wife of the last head being preferred to his collat- 
eral relatives. If it be necessary to go outside of the house, a 
member of an allied house (main or cadet branch of the 
house in question) is to be preferred. From the order of 
preference indicated by the law the council may, however, 
depart with the permission of the proper court.* 

Within the house, the law recognizes the modern occidental 
family, z.e., the group consisting of husband, wife, and chil- 
dren; and it accords to the husband as such, and to parents 
as such, an authority which is independent of that exercised 
by the head of the house. 

Marriage and divorce are consensual: they are based upon 
the agreement of the parties,*° supplemented, in case of per- 
sons under certain defined ages, by the consent of the par- 
ents.°’ The only formal requirement for the validity of 
these acts is the entry of the marriage or divorce upon the 
civil register.** If one of the parties to a marriage desires 
a divorce and the other party refuses his or her consent, ju- 
dicial divorce may be obtained on certain legally specified 
grounds.*® Here the wife is still apparently at a disadvan- 
tage, for the grounds on which she may demand divorce are 
fewer than those upon which the husband may sue. Uxorial 
infidelity, for example, is a ground for divorce; marital in- 
fidelity is not. One of the grounds, however, on which 
either party may sue, v7z., such ill-treatment or insult that 


83 §§ 979-081. 84 §§ 982-085. 

85 The provisions above summarized are complicated by special rules 
which take effect in case there is in the house a parent of the last head. Such 
a parent, and not the family council, chooses the successor from amung the 
members of the house, and upon such a parent the succession itself devolves 
if there be neither wife nor collateral relation to assume it. §§ 982, 984. 

86 §§ 748, 808. 88 $$ 775; SLO 

87 Vide, infra. 89 §§ 813-810. 


The Japanese Code and the Family 389 


the maintenance of the matrimonial relation appears intol- 
erable,’ is so broad that it may well establish a practical 
equality. : 

In addition to the form of marriage which brings the wife 
into the husband’s house, the Civil Code recognizes the older 
form of marriage which has the opposite result. Marriage 
may be preceded or accompanied by the adoption of the pros- 
pective son-in-law by the bride’s parents (in which case he 
is termed muko-yoshi), or marriage may be immediately 
followed by the entry of the husband into the wife’s house 
(in which case he is described as niu-fiu).°' If the wife be 
presumptive heir to the house headship, the muko-yoshi, 
by virtue of his sex, takes precedence over her and becomes 
presumptive heir in her stead.*” If the wife be already head 
of her house at the time of her marriage, the niu-fiu becomes 
head by virtue of the marriage, unless the contrary is stipu- 
lated.** If the adoption-marriage be annulled, the adoption 
of the husband may be annulled; if the marriage be dis- 
solved by divorce, the adoption may be dissolved;°** and the 
muko-yoshi who has become presumptive heir or house head 
by virtue of adoption, loses this status as a result of the an- 
nulment or dissolution of the adoption. The niu-fiu who 
has become house head by virtue of his marriage simply, loses 
. this status when the marriage is dissolved by divorce.*’ 

We have seen that concubinage was not illegal in Japan 
until 1880, and that the child of a concubine occupied a posi- 
tion midway between that of a legitimate and that of an 
illegitimate child. The word used to designate the concu- 
bine’s child was shoshi.°° In the existing Japanese legisla- 
tion, the skoshi is described as an illegitimate child recog- 


90 § 813, cl. 5. 91 § 788. 

92 The muko-yoshi does not take precedence over any presumptive heir 
except his wife; cf. § 973. 

93 § 736. 94 §§ 858, 866, cl. 9. 

95 § 964. Ikeda’s statement (oP. cit., p. 252), that the muko—yoshi who 
has become house head and is subsequently divorced does not cease to be 
house head, means that the divorce as such does not effect such a capitis 
diminutio as in the case of the niu-fiu. 

96 The distinction between the shoshi and other illegitimate children 
was apparently the same which the Romans drew between flit naturales 
and spurii. 


390 The Japanese Code and the Family 


nized by the father;°’ and under this definition the status 
of the shoshi seems to be nearly the same as in medieval 
Japanese law. If the parents of the skoshi marry, the shoshi 
obtains the status of a legitimate child.** If the father’s 
wife is not the shoshi’s mother, the relation between this 
quasi-stepmother (chakubo) and the shoshi is treated as 
legally equivalent to the relation between parent and child.” 
The skoshi inherits property ab intestato; has, like legitimate 
children, a legal portion of which he or she may not be de- 
prived by testament: and even where there are legitimate 
descendants, the shoshi takes half the share of a legitimate 
child.*° The skoshi is capable of succeeding to the headship 
of the house, taking precedence over illegitimate descendants; 
and it is a disputed question whether the male shoshi does not 
take precedence over a legitimate female descendant.*”* 

Within the narrower family (as distinguished from the 
house) the authority of the husband over the wife, as de- 
fined in the Civil Code, is not very great. The wife is bound 
to live with the husband,**”” but any hardship resulting from 
this rule is apparently tempered by the facility with which 
she may obtain a judicial divorce. For all legal acts which 
seriously affect the wife’s property rights, or which impose 
upon her serious personal obligations, she must obtain her 
husband’s permission;*°* but this permission is not necessary . 
when the husband has disappeared, or is incapable of man- 
aging his own affairs, or when the interests of the husband 
and wife conflict.*** 

Parental authority — exercised primarily by the father, 
but in his absence or incapacity by the mother **® — is very 
generously measured: in some respects it is greater than 


97 § 827. 98 § 836. 99 § 728. 

100 §§ 1004, 1131. Under these sections, however, the shoshi enjoys no 
greater rights than those attributed to other illegitimate children. 

101 This was the medieval rule. After the prohibition of concubinage 
in 1880, but before the present Czvil Code was in force, the Japanese Im- 
perial Court decided, April 13, 1897, that the legitimate female descendant 
preceded the male shoshi. The Civil Code apparently re-establishes the 
medizval rule; for in the order of preferences laid down in § 970, the prefer- 
ence of males precedes the preference of legitimate descendants. Ikeda adopts 
this interpretation, but cites a contrary opinion. See Ikeda, op. cit., p. 196. 

102 § 89, 103 § 74, 104 § y7, 105 § 847, 


The Japanese Code and the Family 391 


the authority attributed to the head of the house. Without 
parental consent, males under thirty and females under 
twenty-five may not validly marry; nor may a husband or 
wife under twenty-five agree to a divorce; nor may any 
person validly adopt or be adopted.'°* The historical pre- 
dominance of the house over the natural family is neverthe- 
less recognized in the rule that no parental authority exists 
in these or in other matters unless the parent and the child 
are members of the same house.'®’ 

In the medieval Japanese house there was as little room 
for guardianship as for parental authority, because the 
head of the house not only held all the property of the house, 
but also exercised over its subordinate members all the per- 
sonal control now attributed to parents or to guardians. 
Only when the headship devolved upon a minor, or when the 
adult head became incapable of managing the affairs of the 
house, could the authority of a parent, as such, become of 
legal importance,*** or, in default of a parent, would a sup- 
plementary guardianship be necessary. In other words, 
guardianship existed only as house regency. At the present 
time, however, since the law has developed separate prop- 
erty and parental authority within the house, guardianship 
has become necessary for all minors not under parental 
authority and for all persons incapable of managing their 
own affairs. By way of compromise with the older system, 
however, the law vests the guardianship of minors not under 
parental authority in the head of the house, unless a guardian 
be named by parental testament.**® In the case of persons 
of full age interdicted from the management of their own 
affairs, guardianship devolves primarily upon the father or 
mother; or, if the person interdicted be married, primarily 
upon the husband or wife and secondarily upon the father or 
mother; failing any such guardian, this guardianship also 
devolves upon the head of the house.**° 

106 §§ 772, 809, 843, 844, 857. 

107 §§ cited, and also § 877. An exception to the rule in § 845. 


108 Moral authority seems always to have been attributed to the parent. 
109 §8§ gor, 903. 110 §§ 902, 903. 


392 The Japanese Code and the Family 


Distinct from and independent of the house, an even wider 
family was recognized by older custom and laws, and is 
recognized by the existing legislation. ‘This widest family, 
which one is tempted to describe as the “ sib,” includes all 
persons related to a given individual by biood or by marriage 
within certain defined degrees.** It includes also all mem-_ 
bers of the same house,” some of whom may be connected 
with the given individual by adoption only. ‘Through the 
agency of a representative council,’* consisting always of 
three persons, this widest family discharges important legal 
duties, particularly as regards ‘minors. If there be no one 
to exercise parental authority over the minor, and no legal 
or appointed guardian, the family council selects a guard- 
ian.** Under analogous circumstances, it appoints a guard- 
ian for an interdicted person. The council supervises the 
administration of all guardians,” including the adminis- 
tration of the head of the house when he acts as legal guard- 
ian. Certain parental powers, viz., consent to marriages, to 
divorces by agreement, and to adoptions, are exercised by 
guardians only with the approval of the council,*** and may 
apparently be exercised by the council directhy.** Even 
when parental authority exists, if this authority be exercised 
by a stepfather or stepmother or chakubo, the family council 
must assent to the giving of a child under fifteen in adop- 
tion; *’* and it may authorize marriage, divorce, or adoption 
in the case of a stepchild or shoshi, when the consent of the 
step-parent or chakubo is withheld.**® When parental au- 
thority is exercised by a mother, the assent of the family 
council is required for acts affecting the property interest of 
the child; **° and in all cases where the interests of parents 
and children are in conflict, the council appoints a representa- 
tive to safeguard the interests of the child immediately con- 


111 Within the sixth degree of consanguinity or the third of affinity, 
§ 725. a2 S045: 

113 §§ 944-953. A good description of the family council and its func- 
tions is given by Gubbins, loc. cit., pp. vii-ix, xxxvi-xxxviil. 

114 §§ 904, 905. 115 §§ 909-038. 116 §8 772, 809, 846. 

117 § 442, cl. 3, is differently translated by Gubbins and by Lonholm. 

118 § 843, 119 §§ 773, 809, 846. 120 § 886. 


The Japanese Code and the Family 393 


cerned.*** It will be perceived that the powers and duties 
of the Japanese family council are more extensive and im- 
portant than those of the European family council — that it 
exercises much of that “ over-guardianship,” as the Ger- 
mans term it, which in occidental countries is entrusted to 
the courts. “It is true,” Mr. Gubbins writes, “that in all 
cases there is an ultimate appeal from the decision of a 
family council to a court of law, but, apart from the natural 
reluctance of most people to take this step, the chances of 
success are too remote to favor its frequent adoption.” **? 

In certain contingencies, the powers of the family council 
extend over the house itself. When the head of a house is 
incapacitated, and there is no parent or guardian to act in his 
stead, the family council exercises the rights of house-head- 
ship;*** and when the headship is vacant, and there is no 
legal or appointed successor, the family council, as has been 
noted above, chooses a successor.'”* 

The members of the family council are regularly appointed 
by the proper court; but a council for a minor may be ap- 
pointed by parental testament.’**° 

In the foregoing survey of the three family groups in 
which the Japanese live — the narrow family, consisting of 
husband, wife, and children; the house, which may include 
several such families; and the still wider body of kinsfolk 
—we have noted only the legal incidents of membership in 
these organizations. All these groups, however, like the 
occidental family, are primarily social, not legal; and in addi- 
tion to the obligations which the law recognizes, the tradi- 
tions of each group impose ethical restraints, while an elabo- 
rate etiquette develops and maintains the habit of deference 
to authority. Japanese life has assuredly little of that sort 
of liberty which Caesar found among the Suabians, ‘“ cum 
a pueris nullo officio aut disciplina assuefacti nihil omnino 
contra voluntatem faciant.” *°° 

121 § 888. 122 Gubbins, loc. cit., p. xxxvi. 128 Sk 


124 §§ 982, 983, 985. 125 88 044, 945. 
126 Bell. Gall., vol. iv., p. i. That Caesar found in the Suabian “ libertas 


”? 


vitae ” one of the causes of their “immanis corporum magnitudo,” suggests, 


394 The Japanese Code and the Family 


As regards property, however, Japanese legislation has 
broken through all these concentric social rings: it has vested 
all property rights in the individual. The subordinate house- 
members have become su iuris. The property of the married 
woman is not merged in that of the husband’s house; it is 
not even merged in that of the husband. In the absence of 
ante-nuptial contract the husband manages the wife’s prop- 
erty and may expend the income, but only “in accordance 
with the uses to which it may rightly be applied.” His posi- 
tion is that of a trustee, unless his wife is head of the house, 
in which case he is merely her agent.”* By ante-nuptial con- 
tract the matrimonial property relations may be adjusted in 
such other manner as the parties may desire.*** Property ac- 
quired by minor children is managed by the father (or by the 
mother under the control of the family council), but such 
property is not in parental usufruct: the powers and duties of 
the parent are those of a natural guardian.*”® 

It is an interesting fact that the capacity of a subordinate 
house-member to hold property was first recognized, in Ja- 
pan as at Rome, in the case of peculium castrense and quast- 
castrense, i.e., aS regards salaries and annuities of military 
and civil officers. 

Succession. to property is in large measure independent 
of the house organization, but concessions are made to the 
older system. If there is no testament, the inheritance de- 
volves primarily upon the descendants of the deceased, per 
stirpes, and without any preference based on sex or age. In 
the absence of descendants, the inheritance goes to the sur- 
viving husband or wife; in the absence of a surviving con- 
sort, it goes to the ascendants."*° The power of a testator 
to modify this order of succession is limited by the right 
of the intestate heirs above mentioned to a legal portion, 
which in the case of a descendant amounts to one-half of 


in view of the small stature of the Japanese, speculations which are probably 
more curious than important. The valuation of his theory may be left to the 
anthropologists. 127 §§ 798-807. 128 §$§ 793 et seq. 

129 §§ 884 et seq. 130 §§ 904 et seq. 


The Japanese Code and the Family 395 


the share which he or she would have received ab intestato, 
and in the case of a surviving consort or an ascendant to one- 
third of such share.*** All this is thoroughly European; but 
there are two additional rules which give the house head a 
privileged position. (1) If the inheritance in question is 
that of a subordinate house-member; if there is neither de- 
scendant, surviving consort, nor ascendant; and if no con- 
trary provision has been made by testament, the head of the 
house takes the entire estate.’ Brothers, sisters, and other 
collaterals have thus no rights of succession ab intestato. (2) 
If the inheritance is that of a house head, his successor in the 
headship, if a descendant, is entitled to one-half of the es- 
tate, no matter how many other descendants there may be; 
and if the successor be not a descendant, he is entitled to 
one-third of the estate. These shares, moreover, are legal 
portions, of which the new head cannot be deprived by testa- 
ment.*** 

Subject to the limitations imposed by the rules regarding 
legal portions, the power to dispose of property by testament 
is fully recognized, and the law of testaments is elaborately 
formulated. As yet, however, testament has taken no firm 
root in Japanese custom. “ What is done in Europe and 
America by will is done in Japan by adoption. Instead of 
giving away property to another person by will which be- 
comes effective after death, a Japanese takes another person 
into his house by adoption during his lifetime, and makes 
the latter the expectant successor to his property.” *** 


_ In comparing the Japanese house with the Roman patri- 
archal family, Japanese writers insist on the differences be- 
tween the two organizations as well as on the resemblances; 
but they have not formulated what seems to be the funda- 
mental difference. The Japanese house apparently repre- 


131 § 131. This section, at least in the translations, is not accurately 
worded; but in view of §§ 994, cl. 2, and 995, it must apparently be inter- 
preted as above. 182 § 996, 

133 § 130. But where there is no descendant, the house head may ap- 
point the successor to the headship by testament. § 979. 

134 Hozumi, Civil Code, p. 58. 


306 The Japanese Code and the Family 


sents an earlier stage of social development: it may be re- 
garded as an intermediate link between the clan and the 
purely patriarchal family. The further back its history is 
traced, the more like a little clan does it appear. If we 
attempt to summarize the Japanese development, we may 
say that, within the territorialized clans which had taken 
form in the mother-right period, there grew up, apparently 
as a result of Chinese influences, patronymic groups which 
were practically inchoate father-right clans. If Japan had 
not at that time already passed beyond the clan state of 
civilization; if the individual, instead of looking for pro- 
tection to his kinsfolk exclusively, had not begun to look 
to a feudal lord; these new groups would apparently have 
developed into clans. As it was, the new houses soon began 
to throw off branch houses; but unlike the Roman patri- 
archal family, the Japanese house did not, and does not now, 
split into new houses as often as the head disappears: it 
throws off branch houses, apparently, only when it be- 
comes, or threatens to become, unwieldy. 

Recent Japanese legislation leaves the historic house for- 
mally intact; but its economic basis has been seriously weak- 
ened, and the personal authority of the head of the house 
has been diminished. Within the house, the modern, occi- 
dental family has obtained at least a partial organization. It 
was perhaps the expectation of the Japanese legislators that 
this narrower family, developing within the house, would ul- 
timately replace it. In considering, however, the probable 
development of this family and the importance which it is 
likely to attain as a social agency, it must not be forgotten 
that the modern European family was characterized, in its 
formative period, by the concentration of all the economic 
resources of its members in the hands of the husband and 
father, and by greater authority of the husband over the 
wife and of the father over the children than is accorded 
to the Japanese husband and father; nor must it be forgotten 
that this family rested on the permanent union of husband 
and wife. In the existing occidental family, the disintegrat- 


The Japanese Code and the Family 397 


ing influences of separate property rights and of facile di- 
vorce are already discernible; and the importance of the 
family as a social unit rests largely on traditions established 
in earlier times. It now resists further disintegration chiefly 
by a sort of vis inertiae. It may therefore well be questioned 
whether the new Japanese family, modelled as it is on this 
latest and feeblest phase of the occidental family, and ren- 
dered yet feebler by a greater facility of divorce than any 
occidental state at present concedes, will really take the 
place and discharge the social functions of the historic house. 
If the Japanese house is destined to disappear, it seems prob- 
able that the decisive agency in its disruption will not be the 
new family, but the individualistic tendencies which the legis- 
lation of the last generation has called into activity; and the 
future development of Japanese society will bring the indi- 
vidual in increasing measure face to face with the national 
state, without important intermediate authority or protec- 
tion. 


x 
THE DOGMA OF JOURNALISTIC INERRANCY.* 


A YEAR or two ago a letter was printed on the first page of 
the New York ‘“‘ Sun ” with the startling editorial head-line: 
‘“ Right You Are; Wrong Were We.” Those who read the 
letter discovered with a shade of disappointment that the 
mistake which the editor admitted was a trifling one: he had 
described a football as an ‘‘ oblate spheroid.” Still, his 
response made a grateful impression and lingered pleasantly 
in the memory; for admissions of editorial fallibility are 
most unusual, and the promptness, completeness and cheer- 
fulness of this admission made it unique. 

That newspapers rarely admit mistake is notorious. They 
are far from willing to correct statements of fact, and they 
are very unwilling to withdraw or modify expressions of edi- 
torial opinion. Many persons find this attitude unreasona- 
ble; some pronounce it absurd. Fundamentally, however, 
the policy of the newspapers is sound. It may even be shown 
to be necessary. It was not originally adopted because of 
any conviction that news was accurate and editorial opinion 
conclusive; on the contrary, it was forced upon the daily 
press by the inevitable inaccuracy of its news and the neces- 
sary inconclusiveness of its judgments. 

News, of course, presents itself as matter of fact, but it is 
in reality only matter of impression. News of an occurrence 
reflects, at best, a one-sided superficial first view of a part 
of the facts which make up the occurrence. ‘The difference 
between facts and news becomes most evident when we com- 
pare the methods by which facts are ascertained and those 
by which news is gathered. The most efficient agencies 
which the wit of man has devised for ascertaining facts are 
scientific investigation and judicial inquiry. Both agencies 


1 Reprinted from The North American Review, vol. 187, no. 627, Feb- 
ruary, 1908, pp. 240-254. 


The Dogma of Journalistic Inerrancy 399 


have found it necessary to develop special and highly tech- 
nical processes and to take plenty of time — processes which 
journalism could not employ if it would, and time which 
the journalist has not at his disposal. 

_ A comparison between judicial inquiry and news-gathering 
is the more legitimate because the work of courts is in some 
respects akin to that of newspapers. Many matters which 
figure first as news become in time objects of judicial in- 
vestigation. Courts disentangle their facts, as journals get 
their news, from testimony. Like news-gathering (and un- 
like scientific investigation) judicial inquiry is conducted 
under some limitation as regards time: except in police 
courts the work is not hurried, but controversies must be 
terminated and the calendar must be cleared. The methods 
of the news-gatherer, however, are very different from those 
employed by courts. The reporter, as a rule, hears but one 
side, and very little of the evidence on that side. He hears 
testimony which a court would exclude as irrelevant or mis- 
leading. He often relies wholly on hearsay. He does little 
if anything in the way of cross-questioning witnesses or de- 
termining their freedom from bias, and he seldom investi- 
gates their reputation for veracity. The crudity of his pro- 
cesses is attributable mainly to haste. Where courts (police 
courts again excepted) have days or weeks, he has minutes 
or, at best, hours. The pace at which he must work is quick- 
ened by competition; for news is spoiled if a rival journal 
publishes it in an earlier edition. The correspondent labors 
under much the same difficulties as the local reporter, and 
has little opportunity to test the statements which he trans- 
mits. 

The difference between facts and news is increased, in 
many instances, by political or economic bias. A reporter 
hesitates to bring in matter which makes against the policy 
of his newspaper, and he is inclined so to color the matter 
which he does turn in as to render it acceptable. 

The most important factor of variation, however, is the 
news-gatherer’s duty to make a “story.” This duty is not 


400 The Dogma of Journalistic Inerrancy 


imposed upon him by arbitrary editorial policy; it is im- 
posed upon the newspaper by the news-readers; and all that 
the editor decides is how far he shall go in meeting the public 
demand. Nor is the public desire for “ true stories” a new 
desire created by the newspapers; it is as old as human so- 
ciety. Rumors about great people and great events, gossip 
and scandal about people of all sorts— these have always 
been demanded. And from the outset the gatherers and dis- 
tributors of such news — village gossips, town barbers, trav- 
elling peddlers and strolling bards — have been constrained 
to put their news into artistic form; they have gained a hear- 
ing not because their stories were true, but because their 
news was always a story. 

The news-story must, of course, maintain a close connec- 
tion with the world of fact. News, no matter how fictitious, 
deals with real persons in real places, and is usually based 
on actual occurrences. Pure fiction is the younger rival of 
news; it tries to tell a better story by freeing itself wholly 
from the trammels of fact. In so doing it gains in artistic 
quality, but it loses something of verisimilitude. Even in 
pure fiction an illusion of reality is essential to enjoyment; 
and news, because it preserves an apparent connection with 
fact, retains the advantage of readier and stronger illusion. 

It seems a far cry from village gossips and wandering 
story-tellers to the modern daily press, with its costly plants, 
its myriads of workers, its national and international organi- 
zation; but, at bottom, modern journalism satisfies the same 
social demand with the same supply — rumor, scandal and 
gossip. Some of the more respectable newspapers limit their 
output of scandal; some of them refrain, except in the case 
of prominent people, from publishing gossip; a few en- 
deavor to exclude unauthenticated rumors of the “ interest- 
ing if true” type; but others cover the whole field and 
achieve thereby the largest sales. The modern daily press 
has unquestionably whetted the appetite for fiction that 
masquerades as fact, because it has made the supply as regu- 
lar as that of our daily bread; and the demand that news 


The Dogma of Journalistic Inerrancy 4o1 


shall be interesting has grown more urgent as the interest 
of news has been enhanced by increasing skill in its presenta- 
tion. More strictly than ever before the news-gatherer is 
held to-day to the duty of making a story. If the occurrence 
which he has to describe is not interesting, he must supply 
interest. If the details do not group themselves dramati- 
cally, they must be regrouped. Omission or addition of in- 
cidents is governed, not by a desire to make the picture cor- 
rect, but by the obligation to make it striking. To the 
journalism that gives freest play to the artistic impulse of 
imaginative reconstruction, we apply the term “ sensa- 
tional’’; but it is not commonly realized that sensational- 
ism is only an exaggeration of what we are accustomed to 
regard as legitimate journalistic practice, and that even in 
the most respectable newspapers there is a great and inevi- 
table difference between facts and news. 

Editorial comments are based on current news. If, as 
is commonly the case, the news is inaccurate, the comments 
are necessarily inconclusive. And the editor, like the re- 
porter, works under the lash of timeliness. If is expected 
of him that he shall emit opinions promptly. The function 
of the leading article is to relieve readers who are mentally 
indolent and readers who are busy and therefore preoccu- 
pied —and nearly all readers fall into one or the other of 
these classes — from the task of forming their own opinions 
or finding fit expression for their own emotions. This func- 
tion must obviously be discharged before the readers have 
either made up their minds or forgotten the news. Once in 
a while, a very conscientious editor, confronted with a very 
difficult or a very important question, announces that the 
newspaper prefers to reserve its judgment until fuller reports 
are obtained; but even such an editor is rarely able to wait 
until all the relevant facts are approximately established. 
To reserve judgments is, on the whole, injudicious. It not 
only disappoints the reader of the editorial page, but it tends 
to discredit the snap judgments presented in adjacent col- 
umns. Bismarck’s aphorism seems as true of journalism as 


402 The Dogma of Journalistic Inerrancy 


of politics: that it is often less dangerous to do the wrong 
thing than to do nothing. 

Under such conditions, editorial utterances, if not dictated 
by partisanship or other prepossessions, are more often re- 
flections suggested by the current news than anything ap- 
proaching judgments, and more often expressions of emotion 
than exhibitions of thought. The editor’s safest course is to 
voice what seems likely to be the general feeling of his read- 
ers. The most dangerous course that he can follow is to try 
to formulate a judgment. 

The legal view of news and of newspaper comment -— a 
view that is entitled to consideration —is clearly reflected 
in the care with which, in criminal cases, all such matter 
is withheld from the jurors. 

If the preceding analysis of the functions of daily journai- 
ism is substantially correct, the general policy of newspapers 
is evident. With facts as such, they have nothing to do. 
Statements of fact concern them only when the matter is 
timely and the form interesting. The great metropolitan 
newspaper should steadily roll off from its cylindrical presses 
its endless picture of daily life, having less regard for truth of 
line and of color than for general effect; never looking back- 
ward except to point out that on such a date it published 
‘“‘ exclusively ’’ some interesting piece of news. On its edi- 
torial page it should record the thoughts suggested and the 
feelings excited by the news of the day; never reverting to its 
past utterances except to remind its readers that on such a 
date it expressed an opinion which fuller information has 
confirmed. 

The course of conduct here outlined is that which the 
ablest newspapers regularly follow; and they would doubt- 
less follow it without exception, were it not for a factor of 
disturbance which is practically constant—the letter to 
the editor. 

By tradition, and in consonance with certain established 
(although disputable) theories regarding the relation of 
newspapers to the public, every individual who alleges mis- 


The Dogma of Journalistic Inerrancy 403 


representation or misjudgment of his acts or utterances has 
a right to a modest amount of space in which to present his 
grievance and to ask for redress. This right is akin to the 
commoner’s right of petition in a monarchic or aristocratic 
state, and it is correspondingly sacred. Such letters, if they 
be not too long, must be printed; they must be printed with 
scrupulous exactness; and, as a rule, they must be answered. 

These petitions the newspaper is bound to resent and to 
resist. They intrude belated facts. They call upon the jour- 
nalist to turn aside from his business of publishing the 
news and making comments on the news and to go into the 
opposite business of publishing facts and rendering judg- 
ments based upon facts. To cater to such demands would be 
bad journalism. To make the situation perfectly clear, let 
us imagine that the newspapers received every such petition 
in a friendly spirit; that they investigated every alleged griev- 
ance in a judicial temper and with an open mind; that if, 
on full consideration, it did not appear that any misrepre- 
sentation had been made or any misjudgment recorded, they 
announced this finding in such a manner as to inflict upon the 
unsuccessful petitioner the least possible pain; that if, on the 
contrary, the grievance were found to be real, they granted 
prompt and full redress, corrected the erroneous statement, 
modified or withdrew the misjudgment, and made the cor- 
rection, modification or withdrawal as prominent as the orig- 
inal item or comment. What would be the result? Every- 
newspaper would be deluged with petitions. To deal with 
them, the working force would have to be increased and the 
paper itself enlarged. To discharge its new duties fully and 
conscientiously, every important newspaper would probably 
be forced to organize a second staff, composed of men not 
primarily interested in news but in facts —— men of judicial 
temper and scientific training; and it would probably be 
found desirable to issue with the daily newspaper a supple- 
mentary fact-paper. In the fact columns of this supplement 
the reader would find corrections, first, of yesterday’s news; 
second, of day-before-yesterday’s news; and so on back for 


404 The Dogma of Journalistic Inerrancy 


weeks, for months, and possibly’ for years, for in some in- 
stances no satisfactory approximation to the truth could be 
attained until years had elapsed. On the editorial page of 
this fact-paper would appear the sober second thoughts of 
the fact editors, touching the opinions expressed weeks, 
months or years before by their colleagues in the news de- 
partment. | 

This fantastic picture of a journalistic house divided 
against itself is of value as a further illustration of the differ- 
ence between news and facts. It shows that a serious and 
persistent pursuit of facts would carry the journalist into 
the field of the historian. The picture is of chief value, how- 
ever, as a demonstration that the demands of individuals for 
the correction of misstatements or for the withdrawal of mis- 
judgments are unreasonable demands, which the newspapers 
are compelled to resist. Any considerable concessions to 
these demands would be distinctly injurious to the essential 
interests of journalism. In theory, such concessions would 
-be admired by all who praise truth and justice; in practice, 
they would gratify only the comparatively small number 
of persons whose wrongs were righted, and they would dis- 
please almost all other newspaper readers. Frequent cor- 
rections of yesterday’s news would annoy the news-reader 
by compelling him to doubt the news of to-day. The illusion 
of reality might in the end be so weakened as to rob news 
of the only advantage which it possesses over other forms of 
imaginative literature. Nor would the reader of newspaper 
comment be pleased by frequent modifications or reversals of 
the editorial attitude. The average man does not care to ap- 
propriate tentative conclusions; he wishes, for the sake of 
mental tranquillity, to be provided with judgments that 
seem final. To lose confidence in his newspaper would drive 
him to formulate his own prejudices and to find reasons for 
defending them; and this would be irksome. 

The illusion a reality as regards its news and the illusion 
of finality as regards its opinions constitute what is com- 
monly called the “ prestige” of a newspaper. The word is 


The Dogma of Journalistic Inerrancy 405 


apt, for its original meaning is “ illusion.” In eighteenth- 
century English it was used in no other sense; Johnson de- 
fined “ prestiges ” as “illusions, impostures, juggling tricks.” 
To-day the word has come to suggest something like repu- 
tation, but it does not mean reputation: it implies nothing 
more than successful appeal to the imagination. Reputa- 
tion for accuracy of statements no newspaper possesses; 
for every one knows that news is not accurate, and that the 
only difference between reckless and cautious journalism 
is in the degree of inaccuracy. Reputation for soundness 
of judgment no newspaper possesses; for every moderately 
intelligent person knows that snap judgments cannot be 
uniformly wise. Popular illusion on this point is more per- 
sistent only because the readers of each newspaper share its 
views; they read it because it voices their prejudices; but for 
this very reason no general illusion obtains as to the wisdom 
of any particular paper. “ Prestige” in these matters 
newspapers do possess in varying degrees; and the state- 
ment that ‘‘ a newspaper must preserve its prestige ” is axio- 
matic. The maintenance of illusions which are dear to the 
public and useful to the newspapers is a necessary aim of 
journalism; and the newspaper is bound to save what an 
Oriental would call its “ face.” 

If it be admitted — and it is hard to see how it can be 
denied —that the petition for justice is a disturbing factor 
in the life of a newspaper, it must be conceded that sound 
journalistic policy demands that such disturbances be re- 
duced toa minimum. It follows that the petition must be so 
answered that the petitioner shall not be likely to repeat his 
offence. No satisfaction is to be given him, for that would 
encourage him to write again as soon as any of his acts or ut- 
terances should again become an item of news or a subject of 
comment. Moreover, any satisfaction given him would en- 
courage other aggrieved persons to write to the editor. It 
is clear, therefore, that, even if the petitioner happens to be 
in the right, he must be so answered as to be put in the wrong, 
This is not difficult to any practised disputant, and to an edi- 


406 The Dogma of Journalistic Inerrancy 


tor it is particularly easy. Both for the special purpose of put- 
ting the petitioner in the wrong and for the general and really 
essential purpose of withholding satisfaction, the editor has 
means at his disposal which the ordinary disputant does not 
command. Not only has he the defensive position and the 
last word, but the attack is necessarily made on ground which 
he selects and with weapons which he furnishes. He decides 
in what part of his paper and in what type the letter shall be 
printed. If it contain arguments which seem convincing, or 
if it be so written as to appeal strongly to the sympathy of 
the public, he can print it in a part of the paper where few 
readers will notice it. He always puts it into the smallest 
type. He selects the heading for the letter, and is thus en- 
abled to give a false impression of its contents to those who 
do not read it and to bias the minds of those who do. The 
heading and the answer.—if any other answer than the 
heading be deemed necessary — are printed in larger type, 
the heading usually in heavy-face type. This difference in 
type fitly symbolizes the fundamental advantage of the edi- 
torial position. The attack upon the paper is made by the 
weak individual “‘ I’’; the defence is conducted by the strong 
institutional ‘‘ We.” Were not vital interests of journalism 
at stake, the inequality of the contest might well move edi- 
tors themselves to compassion. » 

To most American editors the denial of petitions for jus- 
tice seems insufficient. They are clearly of the opinion that 
petitioners not only must receive no satisfaction but should 
be punished for the attempt to interfere with the regular 
business of the newspaper. ‘This attitude is intelligible, but 
it is not prudent. If the newspapers are adequately pro- 
tected by making petitions fruitless— and this seems to be 
the case —it is unnecessary, and therefore impolitic, to give 
petitioners an additional grievance. Passive hopelessness 
should not be converted into active hatred. In any case, 
there is a choice among punishments; and it may be asserted 
with confidence that no form of punishment should be se- 
lected which tends to arouse sympathy for the petitioner. 


The Dogma of Journalistic Inerrancy 407 


If it be deemed necessary to punish him at all, the safer 
course is to make him ridiculous. 

_ The refusal of satisfaction is of course necessary; and 
this involves refusal to admit mistakes. This, in its turn, 
involves an assumption that mistakes are not made; and 
this assumption is the Doctrine of Journalistic Inerrancy. 
It is obviously a fiction; but, like many fictions of the law, 
it furnishes a convenient statement of a working rule. It 
formulates a policy based on expediency, and it admits such 
exceptions as expediency may require. 

It is well known that doctrines expressing policies tend 
to harden into dogmas presented as truths. With this tend- 
ency every student of government or of law or of religion 
is familiar. To this peril journalism also has succumbed. 
The Dogma of Journalistic Inerrancy converts a maxim of 
policy into a tenet of faith. It asserts that the newspaper is 
always right; and from this premise it deduces invariable 
rules of journalistic conduct. To show how this result has 
been reached, it is necessary to consider the manner in which 
the peculiar nature of journalistic activity, especially its pre- 
occupation with first impressions to the exclusion of facts 
and with sentiment to the exclusion of judgment, reacts 
upon the minds of the journalists themselves. 

Journalists of the highest mental type develop a phi- 
losophy which is by no means unknown outside of their pro- 
fession. They hold that truth is not ascertainable, and that, 
if it could be ascertained, it would probably be valueless. 
Applied to journalistic problems this theory produces very 
convenient inferences. Since the facts which constitute an 
occurrence can never be fully ascertained, one view of the 
occurrence is presumably as good as another. The first im- 
pression may indeed be modified by a second, but the sec- 
ond in turn may be modified by a third; and in many cases, 
after long investigation, the first impression is re-established. 
As for editorial opinions, they are probably sounder and as- 
suredly not less sound than other opinions. The only value 
of opinions, in any case, is the influence which they exercise 


408 The Dogma of Journalistic Inerrancy 


upon conduct; and if an editorial opinion makes for de- 
sirable conduct, it is better than a more deliberate judg- 
ment which may have undesirable results. It follows that 
there is really no reason why any plausible statement should 
be corrected or any laudable opinion modified. 

Among journalists of another and inferior mental type, a 
conviction develops that the news which they publish is 
fairly accurate, and that the views which they take are the 
only correct ones. The fact that their statements are seldom 
denied and their opinions seldom disputed, the ease with 
which the few who attempt to correct them are discomfited, 
the apologies and flatteries with which the experienced letter- 
writer approaches them — these things tend to create and to 
strengthen self-esteem. They forget that their comparative 
immunity from criticism is due to hopelessness, and that the 
deference shown them is evoked by fear. The conviction of 
their own truthfulness and wisdom is of course most rapidly 
and most strongly developed among the most respectable 
journalists. ‘The newspaper that is able to give thanks in 
public that it is not as other journals are — forgers of ru- 
mors, scandalmongers, ‘‘ yellow ”— develops a spiritual 
pride which darkens its judgment; and its relative accuracy 
and wisdom seem to it almost or altogether absolute. 

Among all newspaper men the transformation of the doc- 
trine of inerrancy into a dogma is furthered by constant 
association with one another and by the resulting formation 
of a general journalistic opinion which is incomparably 
stronger and more uncompromising than is the opinion of any 
individual journalist. The same influences produce like 
results in all compact, like-minded social groups — in cliques; 
and in parties, in faculties and in churches. Loyalty to the 
group makes the interests of the group paramount and con- 
verts the rules of conduct which subserve these interests into 
articles of faith. If one may invert Schiller’s famous dis- 
tich, the good cow which provides its attendants with butter 
becomes to them a goddess, gracious and holy. 

Between acceptance of the doctrine of inerrancy as a 


The Dogma of Journalistic Inerrancy 409 


statement of policy, with clear consciousness that it is a fic- 
tion, and assent to the dogma, with conviction that it em- 
bodies a truth, many mental attitudes are conceivable; and 
it is probable that most newspaper men occupy intermediate 
positions; but the general conduct of the American daily 
press shows that the average editor stands much nearer 
to the dogmatic than to the rational point of view. 

The dogmatic attitude reveals itself primarily in un- 
broken adherence to the rule that mistake is not to be con- 
ceded. It is only by journalists of the rational type that 
admission of error is ever made. Even from them such ad- 
missions come seldom, and the mistakes which they ac- 
knowledge are hardly ever of any importance. 

The degree to which the dogmatic attitude has been sub- 
stituted for the rational is reflected in the treatment of letter- 
writers who ask for an editorial correction or retraction. To 
journalists of the agnostic and indifferentist type, the ag- 
grieved individual who forces his way into their columns is a 
fussy little man whose grievance is of no real consequence. 
Of course, no satisfaction is to be given him, but it is unneces- 
sary to take him seriously or to treat him very badly. Such 
journalists defend themselves with the weapons of wit and 
of humor, in the use of which they naturally excel. To the 
thoroughgoing dogmatist, on the other hand, the outsider 
who denies journalistic inerrancy is a miscreant, who is to 
be punished, not merely for the general purpose of repress- 
ing infidelity, but also because of his personal sin against 
the light. The journalist of the self-righteous type is pe- 
culiarly vindictive in his treatment of such offenders. What 
does it profit him that he is scrupulous beyond others, if he 
is to be reproved as are the publicans of the press? These 
journalists are not happy in the use of humor or of wit; for 
the humor of an earnest man is heavy and the wit of an angry 
man is blunt. Outsiders who question the opinions of an 
editor of this type in matters of any consequence are often 
treated with unwise brutality. They are trampled and gored 
by the Sacred Cow. 


410 The Dogma of Journalistic Inerrancy 


Dogmas are dangerous, not only to those who deny them, 
but also to those who accept them. Policy admits varia- 
tions; dogma excludes them. Sound journalistic policy 
demands that the disturbance of newspaper business by peti- 
tions be reduced to a minimum; but the interests of jour- 
nalism also require that petitions be occasionally submitted. 
Newspapers, like governments, are bound to do things that 
arouse resentment; resentment must have an outlet; and 
for newspapers, as for monarchic and oligarchic govern- 
ments, the safest outlet is by petition. If petitions should 
cease, the public would clearly perceive that its right of 
petition had been nullified. It is for this reason that it 
seems unwise to inflict punishment on petitioners. The aim 
of punishment goes beyond the discouragement of offenders; 
it goes to the total repression of offences. It may, indeed, 
be said that the repressive aim of punishment is never fully 
realized; it may be urged that, for the sake of bringing to 
public attention the facts as they view them, some aggrieved 
persons will always brave certain ridicule and probable in- 
sult; but it must be recognized that the tendency of punish- 
ment is to reduce petitions below the minimum of safety 
to journalism itself. 

The dogmatic attitude and the course of conduct which 
it dictates are directly dangerous to journalism by reason 
of the resentment which they arouse. In primitive social 
conditions those who insult and defame others incur bodily 
danger; and in some parts of our country the journalist is 
still exposed to private vengeance. As civilization advances, 
the person who injures another by spoken, written or printed 
words is protected against violent reprisals; but this is not 
done for his sake, nor does the law which protects him repre- 
sent any social solicitude for his life or limbs. The law is 
concerned solely with the maintenance of the peace. The 
persistent social attitude was clearly expressed by Frank- 
lin— himself a journalist — when he intimated that com- 
plete liberty of the press should logically be accompanied by 
complete liberty of the cudgel. The law has deprived the 


The Dogma of Journalistic Inerrancy 411 


public of its cudgels, but in exchange it has given actions 
for defamation and prosecutions for libel. The check upon 
journalistic activity persists; it has simply assumed a new 
form. Journalists gain something by the change. The legal 
remedy is more costly in money and in time than the private 
vengeance which it replaces, and it is less certain in its 
operation. Moreover, the law is conservative; and new 
forms of insult, which in an earlier step of social progress 
would have found redress by the cudgel, are only slowly met 
by an extension of the established legal remedies. But the 
advantages which journalism enjoys in the present stage of 
legal development are not necessarily permanent. More 
effective enforcement of the remedies which the law provides 
may be secured by associated effort. Societies might well 
be formed which for a moderate annual premium would in- 
sure their members against defamation. Able counsel would 
be retained; every grievance alleged by a member would be 
promptly investigated; and, whenever sufficient ground for 
action should be discovered, legal proceedings would be in- 
stituted and carried through at the cost of the society. Once 
formed, such organizations would probably extend their field 
of operations; they would become associations for the re- 
form of the law. Doubtless cases would be brought before 
the courts in the hope of securing a judicial construction of 
the law more favorable to the protection of the individual 
reputation. Efforts would be made to obtain statutory 
changes of similar tendency. ‘The laws of other countries 
would be examined, and it would be ascertained that in many 
respects these give more efficient protection against misrep- 
resentation than is afforded by the laws now in force in our 
States. It would be found in particular that most foreign 
legislations do not require allegation and proof of pecuniary 
damage, but only of such misrepresentation as affects the 
reputation. In some legislations it is provided that, when- 
ever a newspaper has been guilty of misrepresentation, it 
must publish the full text of the judgment in the same part 
of the paper and in the same size of type in which the original 


A412 The Dogma of Journalistic Inerrancy 


misrepresentation appeared. Statutes of this character 
would be demanded, and in the present state of public feeling 
such statutes might be passed. Encouraged by success, the 
protective associations might press for legislative recognition 
of the right of privacy; and they might secure the adoption 
of laws penalizing the publication of statements regarding 
private and family life, except in cases in which written 
authorization could be shown or a legitimate public interest 
demonstrated. In our States it is notoriously easy for an 
organised minority to secure almost any sort of legislation; 
and it is evident that the libel-insurance societies would take 
care that the new laws should not sleep in the statute-books. 

It need hardly be pointed out that such laws, effectively 
enforced, would seriously interfere with the existing liberty 
of the press. Journals would still appear, but they would 
bear little resemblance to the American newspapers of the 
present day. They would rather resemble those staid jour- 
nals. of Continental Europe, which the American newspaper 
man has always derided for lack of enterprise and dearth of 
interesting news. Journalists there would be, but of a new 
and humdrum type. They would lack the glad freedom in 
the exercise of irresponsible power which now makes the 
career of the American newspaper man attractive. 

To most American journalists the dangers here indicated 
will probably seem unreal. Accustomed to arousing resent- 
ment and skilled in making its outbursts appear ridiculous, 
they naturally underrate the forces which they are arraying 
against themselves. They forget that the misrepresented, 
weak as individuals, may become strong through organiza- 
tion. They do not appreciate that the irritation of the mis- 
represented is rapidly increasing, partly because grievances 
are never redressed, but chiefly because petitions for re- 
dress are so often dismissed with frivolity or with brutality. 
Least of all do they appreciate that the perilous course which 
they are following is due to a gradual change in their own 
mental attitude — to the elevation of the doctrine of jour- 
nalistic inerrancy to the position of a dogma. 


The Dogma of Journalistic Inerrancy A413 


Gossips and scandalmongers have always been feared; 
bards were formerly feasted in the halls of heroes whose 
deeds they were expected to celebrate and welcomed in the 
courts of princes whose acts they might condemn; but the 
power of the modern daily press is, in its magnitude, a new 
thing. Like all new power, it is over-confident: it does not 
realize its limitations, foresee its perils, nor discern the policy 
which it should pursue to minimize or neutralize hostility. 
It might well learn something from the history of political 
power; and it might consider with especial profit some of 
the many wise things which Machiavelli says about the ab- 
solute prince. 

The prince, Machiavelli argues, cannot safely be virtu- 
ous, for of the recognized virtues many would make his 
career difficult and some would make it impossible. But, 
inasmuch as men praise virtue and censure vice, the prince 
should always seem virtuous. To this end, he should al- 
ways claim for himself the moral qualities which as a rule 
he cannot display in his conduct. This, however, is not 
enough; he must occasionally do conspicuously virtuous 
acts. The occasions should be carefully selected, so that 
his good deeds shall involve the least possible sacrifice of 
political interest and make the greatest possible impression © 
upon the public imagination. 

Up to a certain point, newspapers instinctively follow the 
course which Machiavelli mapped out for the prince. They 
cannot be accurate, but they claim accuracy; they cannot 
render unbiased, deliberate and conclusive judgments, but 
they assert that their comments possess these qualities; they 
cannot deal justly with petitions for the redress of grievances, 
but they say that they are just. Obviously they should go 
further. In rejecting petitions, they should assume an ap- 
pearance of fairness; and once in a while they should grant 
redress of a grievance, and grant it in such a manner as to 
make the act of justice especially striking. Once in a while 
a letter protesting against misrepresentation should be fol- 
lowed by the curt editorial statement: “ The reporter who 


414 The Dogma of Journalistic Inerrancy 


misled us has been discharged.” More rarely, but still once 
in a while, a newspaper should relieve an individual from an 
aspersion cast upon him in its editorial comment; and, since 
he who gives quickly gives twice and he who gives cheerfully 
gives twentyfold, the aspersion should be retracted at the 
earliest possible moment and with the ungrudging alacrity 
of the “Sun’s”’ confession: “ Right You Are; Wrong Were 
We.” 

The dismissal of a reporter for misrepresentation is not 
wholly without precedent; but the cases in which such action 
has been publicly announced are very rare. In such dis- 
missals, undue consideration has possibly been given by some 
editors to the question of the reporter’s culpability. Private 
dismissals, except for offences against the newspaper itself, 
and consideration of the reporter’s culpability as regards 
outsiders are equally inconsistent with sound newspaper 
policy. A reporter who has turned in a good story should 
never be dismissed because his story is not true, but only 
because the interests of the newspaper require a vicarious 
sacrifice on the altar of justice; and, since such sacrifices 
are designed to allay resentment and to create a general 
illusion of journalistic truthfulness and Justice, they should 
be made with the utmost publicity. 

The prompt, undisguised and cheerful withdnaaal of an 
editorial aspersion is probably without precedent. ‘The edi- 
tor who should first take such a step would doubtless be cen- 
sured by almost all other journalists, but their opinions 
would not appear in print. In the public mind, the truth- 
fulness and justice of his paper would be so securely estab- 
lished that subsequent rigorous adherence to normal jour- 
nalistic policy would not seriously impair this new prestige 
for many years. Upon the advertising value of action so 
unusual it is unnecessary to insist. 

A second editorial retraction could not produce the same 
sensation as the first, and repeated dismissals of reporters 
would also yield diminishing returns of illusion; but since 
such departures from established custom could never be- 


The Dogma of Journalistic Inerrancy AIS 


come common, they would never fail to produce the desired 
effect. An annual dismissal or a triennial retraction, if 
properly staged, would cause the murmurs of discontented 
thousands to pass unheeded. 

These suggestions will doubtless be regarded as revolu- 
tionary, but they are in reality conservative. Occasional 
departures from the traditional policy not only will be of 
advantage to journalism, but are necessary for its safety. 
The Doctrine of Journalistic Inerrancy must of course be 
maintained, but the Dogma should be abandoned. 


XI 


THE NATURE AND THE FUTURE OF 
INTERNATIONAL LAW * 


RETURNING, in the early days of the war, from a belligerent 
Germany, through a mobilized Switzerland and a partly 
mobilized Italy, to an America that was still unperturbed 
and unprepared, I revisited the famous Museum of Naples. 
In one of the central corridors, I noticed an ancient mural 
inscription, which I had doubtless seen before without ap- 
preciating its significance—an inscription of the time of 
Augustus: “To perpetual peace.” Thus even in warlike 
Rome, and more than nineteen centuries ago, after a series 
of wars that had shaken the then civilized world from the 
Alps to the African deserts and from the Pillars of Hercules 
to the Nile, as after every great war that has since devastated 
Europe, men’s minds were turning with inextinguishable 
hope to the vision of a warless future. | 


I 


To keep the peace is the prime and perpetual problem of 
law. From prehistoric ages, when loosely aggregated tribes 
first sought to limit feuds between kinship groups and to 
substitute compensation for vengeance, to our own day, when 
we are still striving to check the unregenerate human rever- 
sion to violence in economic struggles, and to persuade or 
compel the adjustment of labor troubles through negotiation 
or arbitration, the fundamental command of the state has 
been the pretorian vim fiert veto. This is also the goal, yet 
unattained, of that body of law, ancient in its beginnings but 
still imperfectly developed, which we call the law of nations. 

1 Presidential address, at the annual meeting of the American Political 


Science Association, Philadelphia, December 28, 1917. Reprinted from The 
American Political Science Review, vol. xii, no. 1, February, 1918, pp. 1-16. 


Nature and Future of International Law 417 


To describe a law that is construed and applied in the 
courts of every civilized state and in international courts 
of arbitration; a law whose rules are to be found not only in 
recorded precedents but also in resolutions of international 
congresses; a law that has been elucidated for three centuries 
by the labor of hundreds of trained jurists, until its sources 
and literature form a library far larger than that of many an 
existing system of national law —at least twenty times 
larger than the library used in compiling the law books of 
Justinian — to describe such a law as imperfectly developed 
seems paradoxical. Many writers, however, go much further, 
denying that the law of nations deserves the name of law. 
They call it international morality. Others deny that it 
merits even this name. Recognizing no world ethics, they 
assert that international law is nothing more than a body 
of usages, morally binding upon the single state only in so 
far as the state accepts them, supplemented by agreements 
which each state concludes of its own free will and cancels 
at its own sovereign pleasure. 

All these writers, of course, admit that in so far as any 
state binds itself by international agreements, and so long as 
it adheres to these agreements, and in so far as the rules of 
international morals or international usage are recognized 
by the legislatures or courts of the single state and enforced 
through its own administrative or judicial processes, what 
we call international law is indeed law, but only because it 
is national law. When a controversy arises between states, 
treaty provisions that are repudiated by either of the parties 
and rules that are not binding upon both parties by their 
own domestic law are not law at all, because there exists © 
no superior organized force to constrain obedience. 

The assumption that underlies these assertions is that no 
rules of social conduct can be regarded as legal rules unless 
they are supported by superior force, exercised by some gen- 
erally recognized and relatively permanent superior au- 
thority. It is further maintained, by many writers, that law, 
properly so-called, not only must be enforced, but also must 


418 Nature and Future of International Law 


be established by such an authority. To this last contention, 
however, legal history lends no support. Little national 
law was originally established by organized political au- 
thority, unless recognition is to be regarded as establish- 
ment. Usages older than courts or legislatures were inter- 
preted by the earliest courts and embodied in the earliest 
legislation. Even in the later stages of legal development 
changes of usage have been similarly recognized. 

Among the writers who maintain that international law 
is really law, some insist, and with truth, that physical co- 
ercion is not the only means that a society employs to insure 
obedience to its laws, nor is it always the most effective 
means of coercion. Ridicule of unusual conduct and disap- 
proval of anti-social conduct exercise a psychical pressure 
that is often more effective than fine or imprisonment. If 
social disapproval is sufficiently strong to entail ostracism, 
and if this begets a boycott, a society exercises the same 
economic pressure that a state employs when it supports its 
laws with pecuniary fines or with confiscation of property. 
Even in the modern state, the law that is made or recognized 
by political authority would be far less generally observed 
if the penalties that are imposed on anti-social conduct by 
the physical power of the state were not supplemented by 
the pressure of. public opinion. These writers point out 
that international law has an effective sanction in the senti- 
ments and opinions of civilized mankind, and that no state, — 
however powerful, can without serious risk antagonize the 
civilized world. 

Between those who assert that rules enforced by psychi- 
cal pressure may be regarded as legal rules, and those who 
insist on the criterion of forcible coercion by a political 
superior, an intermediate position may be taken. It may 
be admitted that social imperatives can properly be regarded 
as legal only when they are supported in last instance by 
force, without admitting that this force must needs be ex- 
ercised by an organized political authority. If a society 
that has no political organization, or none that is efficient, 


Nature and Future of International Law 419 


exercises physical coercion, either through spontaneous gen- 
eral action or through extemporized organs, to punish acts 
that are regarded as anti-social, or if it recognizes the right 
of its individual members to exercise physical coercion 
against offenders and protects them against retaliation, it 
may well be maintained that social usages thus sanctioned 
are legal. 

From this point of view it is possible to distinguish tribal 
law in its earliest stages of development from tribal manners 
and morals, and to find in early tribal usage a core at least 
of true law. From this point of view it may also be said that 
some at least of the rules that govern the relations between in- 
dependent modern states are to be regarded as legal rules. 

Not a few writers have compared international law in its 
present stage of development with national law in its in- 
fancy or adolescence. In the law of nations, as in all early 
law, the greater part of the recognized rules rest on prece- 
dent; they are customs. In either system, law may be sup- 
plemented or even changed by agreement, and agreement 
must in principle be general. Decision by a majority of 
voices was no more recognized in the Teutonic folkmoots or 
in the Polish Diet than in the international congresses of to- 
day. Agreements bound only those that agreed. In both the 
historic instances cited, however, the principle of general 
consent was modified by the greater influence of the more im- 
portant members of the community. In the Teutonic folk- 
moot, a handful of common free men would hardly attempt 
to groan down a proposal supported by all the chiefs. In 
the Polish Diet an ordinary nobleman would hesitate to in- 
terpose his liberum veto against a resolution supported by 
all the magnates. Today the general agreement of the more 
important states sometimes suffices to establish a new in- 
ternational rule. 

The most striking analogy between the soicety of nations 
and early tribal society is to be found in the fact that the 
early tribe was not primarily a society of individual human 
beings, but a society composed of more or less independ- 


420 Nature and Future of International Law 


ent groups. The Teutonic tribe, for example, was a so- 
ciety of kinship groups. The legal molecule was the Szppe, 
for which you will permit me to use the good old Saxon word 
“sib.” The atoms in this social molecule were disregarded. 
As in the society of nations a wrong to an individual is a 
wrong to his state, so in the Teutonic tribe an injury inflicted 
on an individual was an injury inflicted on his sib. The ab- 
sence or imperfect development of superior political au- 
thority inevitably leaves the redress of wrongs to self-help; 
and in the Teutonic tribe this was the affair of the sib, as in 
the society of nations it is the affair of the state. In the one 
case the ultimate means of redress was sib feud; in the 
other, it is war. To the Teutons, feud between sibs and war 
between tribes were essentially the same thing; the only 
difference was in the scale of operations. 

As early as the fifth century, however, and probably ear- 
lier, the Teutonic tribe had taken a step forward which the 
society of nations is today endeavoring to take. It had sup- 
pressed feud in the case of minor injuries, compelling the in- 
jured sib to come into the popular court and demand penalty. 
It permitted feud only in cases of ‘‘ blood and honor.” And 
even here, if the injured sib was willing to waive vengeance 
and sue for penalty, the offending sib. was forced to answer 
in court. | 

Again, in dealing with acts that clearly injured not only 
a sib but also the whole tribe, the Teutons had established 
in a prehistoric period the rule that such an act put the 
offender out of the peace of the tribe, and that any freeman 
might slay him with impunity. In such a case the slain 
man’s sib was restrained from raising feud. The list of 
offenses recognized as crimes against the tribe was indeed 
a short one, but the list of offenses recognized today as 
crimes against the world is still shorter. Piracy is perhaps 
the only clear case. The attempt to assimilate the slave 
trade to piracy has not been fully successful. 

A very important difference between modern international 
-and early national law is found in the fact that early so- 


Nature and Future of International Law 421 


ciety was working out slowly and with infinite travail those 
notions of substantive right that are today familiar to every 
civilized human being. Courts were instituted to terminate 
controversy; justice has been a by-product. From this 
point of view, we may compare the society of nations to a 
community of at least moderately civilized human beings 
that has no political organization or none that is able to 
maintain order. Such was the situation — if I may cite an 
ancient instance taken from records readily accessible but 
less frequently consulted than they should be by modern stu- 
dents of politics — of Israel, in the days when it had es- 
caped from its long Egyptian bondage and had not yet de- 
veloped any political organization superior to that of the 
tribe. In Egypt the Israelites had become acquainted with 
a higher civilization, but after conquering and settling Pales- 
tine they had, as we are told, “‘ no king, and every one did 
_ that which was right in his own eyes.’”’ An outrageous breach 
of hospitality, that is, a breach of the customary law which 
alone made intertribal intercourse possible, a breach coupled 
with rape and murder, so stirred the anger of all Israel 
against the tribe of Benjamin, in whose territory the outrage 
occurred and which refused to surrender the criminals, that 
all the other tribes united to exact reparation. Although 
the allied tribes raised by conscription forces superior to 
those of Benjamin, they encountered bitter and obstinate re- 
sistance. Benjamin seems to have been exceptionally pre- 
pared for war. It had what may be called superior artillery; 
it had “seven hundred men, left-handed, who could sling 
at an hair-breadth and not miss.” ‘The allies suffered two 
serious defeats, but they prosecuted the war until Benjamin 
was conquered. ‘Then the chastened tribe was restored to 
its place in the society of the tribes of Israel.” 

In continental Europe, in the later middle ages, there were 
many countries in which law was not efficiently enforced 
by determinate political superiors. In this period we have 
repeated instances of the formation, in emergencies, of 


2 Judges, ch. xix—xxi. 


422 Nature and Future of International Law 


leagues to enforce peace. Some of these, such as the Hansa, 
developed into powerful federations. Others like the Vehm, 
which may be described as a great central European vigi- 
lance committee, served their temporary purposes and disap- 
peared. The Vehm developed no determinate superior that 
could be called sovereign, but the rules it enforced, until it 
succumbed to internal corruption and decay, were well 
recognized legal rules and their enforcement was as efficient 
as in the average modern state. 

We have had similar experiences in our own country. In 
the settlement and development of the West, men imbued 
with notions of civilized justice were thrown together, in 
frontier settlements and in mining camps, beyond the pale 
of organized political authority. They enforced such rules 
as were necessary for efficient cooperation by reverting to 
primitive processes, to self-help and to lynching. In some 
instances, notably in California, they organized vigilance 
committees. Whether the rules they enforced, and enforced 
very effectively, should be called law, is of course a question 
of definition. An apparently prosperous New York business 
man once told me that he did not believe in government or 
in law; he thought they did more harm than good. In his 
youth he had lived in western mining camps and had found 
that “they got on much better before the law came in.” 
I asked him what they did with claim jumpers and with horse 
thieves. He replied that claim jumpers were usually shot 
and horse thieves usually hanged. He was unacquainted 
with the formal philosophy of law or of politics; but he was 
one of Touchstone’s ‘“ natural philosophers,” and his theory 
of law was that of the analytical jurist of the most formal- 
istic type. 

In the society of nations, the redress of an international 
wrong by the concerted action of a number of states is a sig- 
nificant step. Such action has been taken more than once 
against small states, and against nations imperfectly organ- 
ized or temporarily disorganized by internal conflicts. The 
most recent illustration is the concerted action of the Powers 


Nature and Future of International Law 423 


to protect their legations in China against the Boxers. That 
such concerted action is possible against more powerful of- 
fenders has been demonstrated in this war, in the gradual 
extension of the alliance against the Central European Pow- 
ers. Germany and Austria expected to fight two European 
Powers and two or three small European states. Today 
they see arrayed against them six Powers and thirteen states 
containing the majority of the inhabitants of the civilized 
world. ‘This vast league of nations has been called into be- 
ing and into action by Germany’s disregard of treaties and of 
international law. The moral reaction began with the rape 
of Belgium; but more decisive than this or any other offense 
Germany has committed in arousing the active hostility of 
the world—clearly decisive in bringing the United States 
into the war — is the ruthless and indiscriminate destruction 
of enemy and neutral merchant vessels. German submarine 
warfare against ocean commerce not only affronts the gen- 
eral sense of justice and outrages the universal instincts of 
humanity, it also disturbs the economic intercourse of the 
world. It not only inflicts material damage, direct and in- 
direct, in every quarter of the globe, it also imperils to an 
unprecedented degree the agencies of intercourse which 
gave birth to civilization and by which civilization is still 
chiefly maintained. This is the principal, although not the 
only reason, why Germany finds itself confronted by some- 
thing very like a World Vigilance Committee. 

In every such concerted action of the still unorganized 
society of nations, we find, if I may revert once more to 
the analogy between international and early national law, 
a forward step resembling that taken by the tribe when it 
began to react in its entirety against offenses for which there 
had been previously no redress except by feud. In the de- 
velopment of tribal law, such reactions indicated that offenses 
previously regarded as torts were beginning to be viewed 
as crimes. Concerted action by the society of nations against 
an offending state seems to imply a recognition that a state 
may be held accountable, not only to other single states 


424 Nature and Future of International Law 


which it has directly injured, but also to the world for a 
crime against civilization. 


II 


There is today a widespread feeling that the fabric of 
international law has fallen into ruin and that it must be re- 
built from the foundations. This feeling is not new; it has 
appeared in every general European war; it was widely ex- 
pressed during the Napoleonic wars. When men’s minds 
are engrossed by war, they forget that the rules they see over- 
ridden are only a part, and not the most important part, of 
the law of nations. It is only the law of war that is men- 
aced; the law of peace is unassailed and will resume its 
sway when peace returns. And it is a hasty judgment that 
affirms that even the law of war has broken down when, 
as is the case today, many of the combatants have been 
drawn into the struggle by Germany’s disregard of the re- 
strictions imposed upon warfare between civilized nations 
and are fighting, in part at least, for the maintenance of the 
law of war. Only if Germany wins and its offenses remain 
unpunished, will it be possible to assert that in this world 
war the law of war has been overthrown. 

After this war, it will doubtless be necessary to fill some 
gaps in the law of war. The use of submarines and of air- 
craft must be regulated. The right of retaliation must be 
defined and limited. It must be made clear that the violation 
of neutral rights by one belligerent gives the other no right 
to violate the same or other rights of the same or other neu- 
trals; and even as between belligerents some check must 
be imposed upon reprisals that cannot properly be called re- 
taliations, upon reprisals that are clearly disproportionate in 
their illegality or in their inhumanity to the alleged offenses 
by which they are evoked. In the Brussels conference of 
1874, it was proposed that “ the choice of means of reprisal 
and their extent should bear some relation to the degree of 
violation of law committed by the adversary,” that they 
“should not exceed the violations committed.” Without 


Nature and Future of International Law 425 


some check, reprisals and counter reprisals, each exceeding 
the other in illegality and inhumanity, tend to carry warfare 
back to its earliest and most barbarous form. ‘There must 
also be an examination and a limitation of the conception 
of military necessity. An unlimited right of reprisal and a 
right to violate the rules of war whenever, according to a 
purely military judgment, there exists a necessity for their 
violation — these alleged rights reduce all rules of war to 
scraps of paper. 

Acceptance of such restrictions will be facilitated by the 
experience of this war. There seems to be a growing recog- 
nition that excessive cruelty and inhumanity do not pay. 
The Austrian jurist, Lammasch,* has recently written: 


After the conclusion of this war, all parties will have 
sufficient occasion to consider whether the direct advantages 
they have derived from acts justifiable or excusable only 
from the point of view of reprisal or of necessity outweigh 
the indirect disadvantages that they have incurred. 


He cites the German jurist Zitelmann as saying: “In 
the great political game of the future every concession to 
humanity, the avoidance of rivalry in cruelties, will bring 
rich gain.” 

There is indeed one branch of international law that needs 
to be built up from the foundations, not because it has been 
overthrown in this war, but because its construction had 
hardly begun. This is the branch of the law that deals with 
the maintenance of peace. Its development will require 
limitation of the war-making power of the single states, not 
solely by self-imposed restrictions, but also by the law of 
nations. Proposals that are in process of formulation in 
many countries contemplate the prohibition of war in what 
are termed justiciable cases and the postponement of war in 
other cases. If a controversy between states turns upon a 
disputed interpretation of international law or of a treaty, 
or upon disputed facts, the matter is to be referred to a court 


3 Das Volkerrecht nach dem Kriege (Christiania, 1917), pp. 17 et seq. 


426 Nature and Future of International Law 


of arbitration. If the controversy springs from a collision of 
interests, there is to be no resort to war until an attempt 
has been made by mediators to discover a settlement that 
may prove acceptable to both parties. 

In the outbreak of most wars another factor is notori- 
ously operative —a factor which may be associated either 
with disputed questions of law or of fact or with collisions of 
interests — the point of honor. In the opinion of some writ- 
ers, the point of honor should be disregarded. ‘This, in the 
present state of general feeling, seems impossible. Accord- 
ing to other writers, this point also should be submitted to 
arbitration, in order that it may be determined by an impar- 
tial authority whether the honor of the aggrieved state has 
been impaired and how it shall be rehabilitated. It is well 
known that in some countries, where duels are still fought, 
at least in certain social classes, similar arbitrations are found 
possible; but it must also be noted that, in many if not in 
most cases, the so-called courts of honor find that the only 
possible redress is by conflict. The majority of writers ap- 
pear to hold that the point of honor can be dealt with only 
through mediation. 

This program closely follows that by which feud was 
checked in early tribal society. Adjustment of quarrels 
without armed conflict was originally obtained only by direct 
negotiations or by mediation. Submission of such contro- 
versies to a court was originally a matter of agreement; it 
first became compulsory in minor cases; ages passed before 
feud was suppressed in cases of ‘‘ blood and honor.” It was 
not deemed cowardly that the offender should buy his peace, 
but that the wronged party should sell his vengeance seemed 
base. National feeling today is quite similar. When, for 
example, Italian citizens were lynched in New Orleans, our 
government was prompt to offer pecuniary compensation; 
but Italy was loath to accept any satisfaction save the punish- 
ment of the murderers. 

All these proposed rules may be established by treaties. 
The United States, for example, has already negotiated many 


Nature and Future of International Law 427 


such treaties. They may be established by international 
congresses; but the resolutions of these congresses will be 
no more than treaties between each ratifying power and all 
the others. What security will there be against breaches of 
such treaties? 

In minor matters such treaties will doubtless be generally 
observed. Nations rarely go to war for trifles; if trifling 
causes have been alleged, these have been pretexts. What 
guaranty will there be, however, that in disputes not justici- 
able, in collisions of interests in which national passions are 
fired by the assertion that the national honor is at stake, a 
powerful state will stay the march of its armies until medi- 
ators have considered alleged grievances, investigated dis- 
puted statements of facts and submitted to each nation con- 
cerned their findings and their plan of settlement? What 
convincing arguments can be opposed by statesmen to the 
military authorities, if these allege, as they always allege 
when they think themselves better prepared than their ad- 
versaries, that every day’s delay strengthens the prospec- 
tive enemy and lessens their own chance of victory? 

It is proposed today in many quarters that the society 
of nations shall act collectively through permanent organs 
to enforce submission to the proposed rules. More or less 
elaborate schemes have been formulated for the establish- 
ment of the requisite organs. The idea is not new, nor is 
there much that is novel in these plans. Similar proposals 
have been made from time to time during the past six cen- 
turies. What is new is the wide support given to these plans 
and the endorsement they have received from responsible 
statesmen. 

The crucial question is that of sanctions. We shall gain 
relatively little, it is urged, by establishing new international 
organs unless it is possible to give something more than moral 
authority to their decisions and mandates. The decision 
that a controversy is justiciable must be followed by some 
joint action of the civilized world against the state that re- 
fuses to submit its case to arbitration. The prohibition of 


428 Nature and Future of International Law 


hostile ‘action in other cases, until reasonable time has been 
given for mediation, must be followed by some joint action 
against the state that refuses to obey the injunction. The 
first question is: What shall be the nature of the joint action? 
When this question is answered, a second arises: Can the 
joint action required be secured? Who shall coerce unwill- 
ing neutrals to join in coercing their quarrelsome neighbors? 

This last question needs only to be stated to be answered. 
In the society of nations, as it exists today, any such general 
coercion is unthinkable. All that can be deemed feasible 
is to affirm the legal right and the moral duty of nations not 
primarily interested to join in penalizing breaches of the 
proposed rules. How far they will recognize such a duty — 
and exercise such aright will depend in part upon the nature 
of the action they are expected to take. 

On this point, there are many proposals. It is suggested 
that joint action should be confined to measures short of 
formal war. In case one party accepts and the other rejects 
arbitration; in case either party, after arbitration, refuses 
to accept the judgment of the arbiters; in case a state disre- 
gards the injunction to refrain from hostile action pending 
mediation, the states not primarily interested are to have 
the right and it shall be their duty, upon the outbreak of the 
war, to say to the offender: We shall allow no goods to be 
exported from our territories to yours and we shall permit 
you to float no loans within our jurisdiction. ‘To the other 
party involved in war, they may and should say: You may 
draw from our territories whatever supplies you need, includ- 
ing munitions of war, and you may borrow from our citi- 
zens whatever funds they are willing to lend you. This 
differential treatment, it is suggested, may be carried further: 
the citizens of states not primarily interested may be for- 
bidden to enlist in the army or navy of the offending state 
and may be encouraged to offer their services to its enemy. 

Other supporters of coercion go much further. Accord- 
ing to their plans, it shall be the right and the duty of the 
society of nations to take military action against the offend- 


Nature and Future of International Law 429 


ing state. The economic sanctions are to be supported by the 
sanction of physical force. It is even suggested that a world 
army and a world fleet, composed of contingents furnished 
by the several states, shall be organized and held in readiness 
for immediate use against states that disregard the proposed 
international rules regarding arbitration and mediation. 
This proposal is not infrequently coupled with schemes for 
the reduction of national armaments. 

It is to be noted that some at least of these proposals in- 
volve the establishment of a world government. It is not 
proposed to organize a world state with federal government, 
but there is to be something approaching a world confeder- 
acy. If this confederacy is to hold periodical legislative 
congresses; if it is to have a supreme court, a council of 
mediation, and a board clothed with a certain degree of exec- 
utive authority — a board which in one of the plans is called 
(most unwisely, it seems to me) a “ ministry ” —and if it 
is to have a federal army and navy, it will have much of the 
outward semblance of a world state; and its powers—on 
paper, at least —will not be sensibly inferior to those exer- 
cised by some of the looser national confederacies that have 
existed in the past and that have finally developed into fed- 
eral states. They will not be sensibly inferior to those exer- 
cised by our own Union under the Articles of Confederation. 

That some such world organization will ultimately be es- 
tablished is not improbable. The development of law has 
always been accompanied and conditioned by the subjection 
of smaller to larger groups — of kinship groups to tribes, of 
tribes to small states, of small states to national states — and 
the development of international law may well bring similar 
subordination of the single states now sovereign to the au- 
thority of a world league. That any such world organiza- 
tion will be developed in the near future, few students of 
history and of politics will deem probable. The subordina- 
tion of smaller to larger groups has always encountered in- 
tense and obstinate resistance —a resistance based on that 
human instinct which is most essential to efficient codpera- 


430 Nature and Future of International Law 


tion, the instinct of loyalty. When we remember what 
stretches of time have been needed to transfer allegiance from 
each smaller to each larger group, when we recall that, in most 
cases, this transfer of allegiance has been accomplished only 
through war, we may well conclude that it will be no easy 
task to imbue the people of the great modern national states 
with the conviction that they owe any real allegiance to hu- 
manity, and that it will be even harder to convince them that 
this allegiance is in any respect higher than that which they 
owe to their own national states. 

It will be easier to carry resolutions through international 
congresses and to secure their general ratification than to 
establish new methods for their enforcement. It will be 
easier to obtain general recognition of the right of disinter- 
ested states to insist on arbitration or on mediation, when 
war seems imminent, and to participate in joint action against 
an aggressive state, than to secure formal pledges of even- 
tual participation in such action. It will ‘be less difficult to 
secure pledges to join in a boycott against future offenders 
than pledges to take part in military action. It will be far 
less difficult to establish permanent boards for arbitration, for 
investigation and for mediation, than to clothe them with real 
powers. Plans for facilitating voluntary codperation will 
encounter far less opposition than proposals that suggest the 
establishment of anything resembling a world government. 

In pointing out some of the obstacles that will be en- 
countered in any effort to organize the society of nations 
and to give more efficient sanction to its laws, it is far from 
my purpose to discourage such efforts. If they are wisely 
directed, I believe that substantial progress may be achieved. 
The temper of the world is far more favorable to such efforts 
than at any former period. Never before were the nations 
so closely knit together by material and spiritual bonds of 
every kind as in the years immediately preceding the out- 
break of this war; never before has it been so convincingly 
demonstrated as during the past three years that the common 
interests impaired by war outweigh any separate and selfish 


Nature and Future of International Law 431 


interests that war can possibly promote; never before have 
neutrals so clearly seen that they have a vital concern in 
the maintenance of the world’s peace. Until now, the atti- 
tude of neutral governments towards a war has resembled 
that taken in 1439 by the authorities of Namur towards a 
local feud. “If the kin of the slain man will and can avenge 
him, good luck to them, for with this matter the Schoffen have 
nothing to do, nor do they wish to be reported as having 
said anything about it.” * In the present war our govern- 
ment found such a neutrality of thought and of word in- 
creasingly difficult, and neutrality in conduct was ultimately 
found to be impossible. 

For the successful working of any international organi- 
zation to maintain peace it is essential that every civilized 
state should not only claim the right but should also recog- 
nize the duty of aiding in its maintenance. This involves 
the acceptance of the international point of view, the develop- 
ment of the international mind. In this matter all who teach 
and write in the fields of history, sociology, economics, poli- 
tics and law have grave duties. Never before, except possi- 
bly in the period of the French Revolution, have the dy- 
namic potencies of what seemed abstract theories been so 
strikingly revealed. Many of the theories we have held 
are being tested, as never before, in the furnace of this 
greatest and most terrible of wars. Some of them have de- 
veloped unforeseen and deplorable corollaries. It is our 
duty today to reéxamine our theories from the point of view 
of the interests of humanity. Let us ask ourselves whether 
they work for the welfare and the progress of the world; 
whether they tend to further the immemorial effort of hu- 
manity to rise from the mire of brute struggle for survival 
to the clean heights of a noble rivalry in common labor for the 
general good. 


4 Brunner, Deutsche Rechtsgeschichte, vol. 1, § 21, note 11 (p. 150). 


XIT 
THE GROWTH OF THE AMERICAN UNIVERSITY * 


Fellow-students — for we are all in this class, the presi- 
dent and my colleagues as well as the undergraduates. 

Most, but possibly not all of you, know that in the water- 
ways about New York City the only point that is called a 
gate bears the unattractive, not to say ill-omened, name of 
Hell Gate. In coming from Hell Gate to Golden Gate one 
is conscious of a marked change in the moral as well as 
in the physical environment —a change that is, in a way, 
symbolized by the names of the two sea gates. I do not 
mean to suggest that New York is in any sense an inferno. 
Hell Gate got its name, not because it was a way into 
New York, but because of a dangerous reef in mid-channel, 
which caused it to be regarded by early mariners as a way 
leading too frequently into another and worse world than 
ours. I think, however, that there is something symbolic 
in the retention of the name in spite of the fact that the 
reef was long ago blown up and a safe channel dredged. 
I do not think that such a name would be tolerated in San 
Francisco or in any Californian port. In its retention 
there is a certain humor, but the humor is cynical and has 
its root, like all cynicism, in pessimism. Along our eastern. 
coast, perhaps because of its closer touch with Europe, there 
is in fact something — and too much— of the weary Old 
World’s pessimism. America, which is nothing if not opti- 
mistic, begins, as Emerson said long ago, west of the Alle- 
ghanies. 3 

In further progress along the westward course of empire, 
in crossing the Rockies, a dweller on the eastern coast feels 
another change. He is again on the edge of an ocean. Civili- 

1 An address delivered September 15, 1922 at the University of California. 


Reprinted from the University of California Chronicle, vol. xxv, no. I, 
February, 1923, pp. 43-08. 


The Growth of the American University 433 


zation, as every student of history knows, is not a national 
but an international product. It started everywhere by the 
sea and, until the development of railroads, it was carried 
first along the routes of sea trade, and only slowly found 
its way into inland regions. The earliest trade meant an 
interchange of spiritual as well as of material goods; as a 
great legal historian, Rudolf von Jhering, has strikingly put 
it: ‘The ship that carried goods brought back gods.” But 
however cosmopolitan your moral atmosphere, it is still 
as American as that of the great central hinterland between 
the Alleghanies and the Rockies. Thoroughly American, for 
example, is an inscription I saw the other day on an arch 
through which the traveler passes from the railroad station 
into a town in the San Joaquin Valley: ‘“‘ Modesto. Water, 
Wealth, Health and Contentment.” In these days of world- 
wide unrest it is cheering to find that in one spot at least 
there is contentment. If a stranger may trust his first im- 
pressions, this genial optimism prevails throughout your 
state. Your moral atmosphere seems as golden as your air. 

For the students in this University, as for students in 
all the leading American universities, there is one ground 
for contentment which is perhaps not fully appreciated by 
those of you who belong to the younger generation, who 
are undergraduates. To you the opportunities offered by a 
modern American university may well seem a matter of 
course. Unless you have studied the history of American 
education you cannot fully realize how new are these oppor- 
tunities nor how great they are as compared with those 
offered to American students fifty or even forty years ago. 
At Columbia, for example, and the state of things at Co- 
lumbia was fairly typical, we had, in 1880, a little college 
of the old type, with a rigid plan of study. We had also 
a school of engineering. Loosely attached to these were 
schools of law and of medicine. In the three professional 
schools the instruction was narrowly practical. The engi- 
neering courses, organized by men who had studied in 
Europe, extended over four years. For medical education 


434 The Growth of the American University 


three years were deemed sufficient. Preparation for the prac- 
tice of the law was compressed into two years. The col- 
legiate and the professional curricula were parallel, in that 
the requirements for admission were substantially the same 
— for some of the professional schools a little lower than 
for the college. These fragments of the future university, 
separately organized and independently developed, were 
uncorrelated, with a resultant waste of effort in instruction. 
For example: In the schools of medicine and of engineering 
the first year of study was largely devoted to general courses 
in some of the natural sciences, for the reason that no 
high-school graduates and few college graduates had re- 
ceived adequate preparation in these subjects. In several: 
of these subjects substantially identical instruction was 
given separately in the professional schools and in the 
college. : 


Similar conditions existed throughout our country. Ex- 
cept for the traditional professional schools of divinity, of 
law, and of medicine, and the newer schools of engineering 
and of agriculture, sometimes attached to the old colleges, 
often standing alone, there was, half a century ago, only 
sporadic provision for professional training. In the Uni- 
versity of Pennsylvania there was a school of dentistry which 
drew students from foreign countries. In 1880 there were 
but three schools of architecture in the United States, and 
ambitious would-be architects were still streaming to Paris. 
Hence the saying, current some twenty years ago, that 
American architecture was either Beaux-Arts or bizarre. 

Students who desired a broader training in medicine, in 
law, or in theology than was offered in this country went 
likewise to various European centers. 

For those who desired a more advanced training in non- 
professional subjects than could be obtained in our colleges 
there was practically no provision. Nor was there provision 
for training in research, either in the natural or in the social 
sciences. For those who desired such training it was not 


The Growth of the American University 435 


simply advantageous, it was necessary, to go to Europe. 
Even before the middle of the last century there was a grow- 
ing body of American students in the German universities, 
partly because of the opportunities there offered, partly be- 
cause many of the requirements imposed upon the German 
youth were relaxed or waived as regarded foreign students. 

The first attempts to fill some of these gaps in our educa- 
tional system were made in our colleges. To find room for 
necessary and neglected studies, the rigid scheme of college 
study was relaxed and, in some colleges, abandoned. The 
elective system was introduced, at first in the senior year, in 
some institutions finally even in the freshman year. 

The elective system has its advantages for the earnest 
student who has.a definite goal in view and is willing to 
accept expert guidance in reaching it. In most of our col- 
leges, and particularly in our eastern colleges, the proportion 
of such students is small. Many desire to enjoy to the full 
the social advantages of the college and to devote as large 
a portion of their time as possible to extra-curricular student 
activities. Then there is everywhere a certain proportion 
of distinctly indolent students. For getting through college 
along the lines of least resistance the elective system offers 
special facilities. Observation of the results led President 
Stanley Hall of Worcester University to remark, some years 
ago, that the college seemed to have become an institution 
for the artificial prolongation of the period of adolescence. 
And a former colleague of mine at Columbia, Professor 
Woodward, afterwards president of the Carnegie Institution 
at Washington, was moved to describe the elective college 
program as “four years of aimless discontinuity.” Presi- 
dent Eliot of Harvard, the leading champion of the elective 
system, was fond of saying that the intrinsic merits of that 
system could not be better stated than in the words of 
Shakespeare: 


No profit grows where is no pleasure ta’en. 
In brief, sir, study what you most affect. 


436 The Growth of the American University 


When any utterance of a dramatist is cited, it is worth 
while to consider in what sort of a mouth the words are put. 
The advice cited, which you will find in The Taming of the 
Shrew, is indeed addressed to a young Italian gentleman 
who has come to Padua to study philosophy, but it is given 
him by a comic scamp of a servant, who is afraid that, if his 
master takes his university work too seriously, neither of 
them will have a good time. 

These disadvantages of the elective system have to a 
degree been remedied in various ways; for example: by 
assigning to each student a faculty adviser; by insisting 
on prerequisites for more advanced courses; by increasing 
the number of prescribed courses; and by the so-called group 
system, which perhaps comes nearest to securing coherence 
and continuity of work. 

One result, however, which I for one greatly rite is 
the progressive disappearance from our college education 
of the study of the classics. I regret this chiefly because our 
civilization is so largely a continuation of the ancient 
Mediterranean civilization. As Sir Henry Maine put it, mod- 
ern civilized nations are those that have taken their religion 
from Judea, their arts and philosophy from Greece, and their 
law from Rome. I am not of those who believe that all that 
is worth while in the ancient culture has been so thoroughly 
assimilated that. the records of that culture can be thrown 
into the educational scrap-heap. No architect or artist would 
assert that the Parthenon could be dynamited or that the 
Venus of Milos and the Hermes of Olympia could be re- 
moved from the public galleries in which they stand and sold 
to private collectors of antiquities without loss to the world; 
and I feel that we still need in equal measure the inspiration 
to be derived from the classical literatures. 

The attempt to make provision for studies previously 
neglected by introducing them into the college curriculum 
proved unsatisfactory, not only for the reasons above noted, 
but also because many of these studies require a background 
of knowledge and a maturity of mind which college under- 
graduates rarely acquire before the senior year. 


The Growth of the American University 437 


A different and more satisfactory solution of the problem 
has been worked out during the past fifty years. For ad- 
vanced study of the natural and social sciences provision 
has been made in non-professional graduate schools. In 
these, training in research had been developed. New pro- 
fessional schools have been established. In these, and also 
in the older schools, professional training has been increas- 
ingly liberalized, partly by requiring preliminary college 
study, partly by enabling and encouraging professional 
students to devote some part of their time to related subjects 
in the non-professional graduate schools. At the same time 
there has been a general lengthening of the periods of pro- 
fessional study. All these parts of the university have more 
and more been correlated with one another. These changes 
have been facilitated by the very general adoption of the 
so-called ‘‘ combined courses” of college and professional 
study, in which, as is sometimes said, the college and the 
professional schools are ‘“‘ telescoped.”” This innovation has 
been of advantage not only to the professional schools but 
also to the colleges. It has brought into the colleges some- 
thing of the more earnest spirit of professional study. 

In this development no single university has assumed a 
sole leadership. Johns Hopkins University was established, 
nearly half a century ago, exclusively for graduate study. 
An undergraduate college was a later addition. Harvard 
was the first university to require for admission to its law 
school a preliminary college training. In both of these 
movements Columbia University was an early second. Co- 
lumbia was the first to permit its college students to elect in 
their senior year a full professional course of study, and it 
has since placed all its professional schools on a basis of two 
or three years of college study. The University of California 
has taken an interesting and important further step in 
establishing, in concurrence with its three-year program of 
professional legal study, a four-year program in its school 
of jurisprudence. 

James Bryce pointed out that one great advantage of our 
federal form of government was the possibility of inde- 


438 The Growth of the American Umiversity 


pendent political developments in the single states. Our 
state governments, he said, were so many political experi- 
ment stations, in which we could try all things and hold fast 
to that which proved good. The even higher degree of 
autonomy in our educational system which comes from the 
existence of privately endowed as well as of state universi- 
ties provides a very much larger number of educational ex- 
periment stations. Of these California has become one of 
the most important, one whose experiments are watched 
with closest interest from the Pacific to the Atlantic. 


XIII 
THE PRINCIPLE OF NATIONALITY? 


My interest in Chinese civilization, and particularly in 
Chinese government, was aroused at an early period, forty- 
five years ago, when I was studying law in Berlin. It was 
awakened by acquaintance with a scholar and diplomatist 
who was at the time a secretary of the Chinese Legation at 
Berlin, Mr. Lo Feng-luh. He had previously been con- 
nected for several years with the Chinese Legation in Lon- 
don, and later, I understand, returned to England as Chi- 
nese Minister. Lo Feng-luh was intellectually one of the most 
remarkable men I have known. His mind worked rapidly 
and at the same time accurately. He had what James 
Russell Lowell, writing of Abraham Lincoln, described as 
a “ sure-footed mind.” We became good friends. ‘ A dif- 
ference of taste in jokes,” George Eliot says, “is a serious 
bar to friendship.” One of the things that drew Lo Feng-luh 
and me together was an identical sense of humor. During 
my three years of study in Germany I knew no German 
with whom I stood in equally intimate relations nor any 
German, except one of my law teachers, whose personality 
impressed me so strongly and has remained so vivid in my 
memory. 

In our talks he asked me many questions about occi- 
dental society, literature and religion— rather, I think, to 
corroborate his own impressions than to enlarge his knowl- 
edge, for he understood Europe. I, in turn, asked him many 
questions about Chinese society and government, and I 
always got from him frank and illuminating replies. 

I recall one statement of his which I shall make the 
text of my remarks this evening. ‘To me,” he said, “ Eng- 


1 Paper read before the Chinese Social and Political Science Association, 
October 5, 1923. Reprinted from The Chinese Social and Political Science 
Review, vol. vii, no. 4, October, 1923, pp. 226-233. 


440 The Principle of Nationality 


lishmen and Frenchmen, Italians and Spaniards, Germans 
and Russians seem rather varying types of a single race 
than distinct peoples.” He found no greater difference be- 
tween these European peoples, in speech, in customs, and in 
ideas, than exists between the peoples of the different prov- 
inces in China. 

In the nineteenth century it became an axiom of occi- 
dental political philosophy that the only proper and secure 
basis of political organization is a substantial identity, within 
the territory of each state, of ideas, customs and speech. 
The principle of nationality, in this narrow sense, obtained 
and still enjoys almost undisputed recognition. If this be 
the last word of political philosophy, the Chinese Empire 
was, and the Chinese Republic is, a political anomaly. And 
yet the Chinese Empire existed for centuries before the Ro- 
man Empire had been established, and in comparison with 
it the oldest existing national states of Europe are modern 
things and many of them are mushroom growths. China 
has repeatedly seemed on the verge of dissolution, the disap- 
pearance or overthrow of a dynasty has repeatedly produced _ 
periods of anarchy, but always its unity has been re- 
established, as I hope and trust that the unity of the Chinese 
Republic will be reestablished. 

What are thé bonds that have held China isueines 
Speaking with diffidence, on the basis of the information 
derived from my first Chinese teacher, Lo Feng-luh, and, 
since that, from my Chinese students — many of whom have 
been at the same time my teachers —I gather that the posi- 
tive bond of unity is a common written language, through 
which common views of ethics, of economics and of politics 
have been diffused among the educated classes, who in China, 
as always and everywhere, have been the leaders of thought 
and through whom these common views filtered down 
through the people of all the provinces. A negative bond 
of union — if I am rightly informed — was found in a wise 
tolerance of provincial divergences in matters not essential 
to political unity. There was no attempt to impose a com- 


The Principle of Nationality 441 


mon speech upon all the provinces. There has been toler- 
ance in the matter of religion. There has been little, if any, 
interference with local customs. While the government of 
the several provinces was entrusted to officials appointed 
by the emperors, it appears to have been necessary for these 
governors, if they wished to retain their positions, not only to 
discharge satisfactorily their duties to the Empire, but also 
to live on good terms with the provincials. And strictly local 
government, if I am correctly informed, was left largely in 
the hands of representative local groups, such as merchants’ 
and farmers’ guilds. 

Why has the course of European history been so different? 
To answer this question fully in a brief address would be 
impossible. History is constantly being rewritten from the 
point of view of the latest developments; and for at least a 
century it has been the effort of historians to show that no 
union of the peoples of continental Europe under any form 
of government could endure, because such a union would 
violate the principle of nationality. To try to show that this 
assumption is untenable, or unquestionable, it would be 
necessary again to rewrite European history. I shall en- 
deavor only to outline what seem to me the chief causes of 
European disunity. Two thousand years ago a unity was 
achieved which endured for five centuries. Not Europe 
alone, so far as Europe was civilized, but also the entire 
area of western civilization was included in the Roman Em- 
pire. When the northern barbarians, eager for their place 
in the sun, swept across the Rhine, the Danube and the 
North Sea and gained control of Italy, Gaul, Spain and Brit- 
ain, they had no notion that they were overthrowing the Ro- 
man Empire. They regarded it as still existing; their kings 
were governors of Roman imperial provinces and their armies 
were imperial armies. Many of their kings sought imperial 
recognition of their authority — from the emperor at Rome, 
so long as there was such an emperor; later, in several in- 
stances, from the emperor at Constantinople. As has re- 
peatedly happened in the history of China, the northern 


442 The Principle of Nationality 


conquerors accepted, and to some extent assimilated, the 
superior civilization of the conquered southern world. They 
were already, or soon became, Christians. Those Germans 
whose territories had never been ruled by Rome retained 
their speech, but, under the guidance of the only educated, 
class, the Christian ecclesiastics, their kings organized their 
governments more or less on Roman lines. The Germans 
who settled in Gaul, Spain and Italy not only accepted Ro- 
man institutions but also, ultimately, the speech of the 
Roman provincials. 

Meanwhile, Christendom had been split by religious dis- 
sensions into two great churches — the Roman Catholic and 
the Greek Orthodox. The East Roman or Byzantine Em- 
pire, which lasted a thousand years longer than the West- 
ern, was thus severed from Western Europe, the Eastern 
Slavs were Christianized by Greek missionaries, and these 
two regions developed for centuries along different lines. 
In Western Europe, in spite of political disunion, the tra- 
dition of unity remained strong; and when in the Frank 
Empire all the Christian peoples of Western Europe, ex- 
cept the English, were brought under the rule of a single 
monarch, it seemed natural and fitting that Charlemagne 
should be crowned emperor at Rome. In the early: part 
of the ninth century there seemed to be a fair chance that 
Western Europe, recognizing one supreme secular ruler and 
one spiritual head, the Roman Pontiff, would remain united. 

Before the close of the ninth century this empire went 
to pieces, not, as modern German historians explain, because 
of the development of distinct nationalities, but because 
of the increasing power of local magnates and because of 
disputes regarding the succession to the throne. When 
this empire was dissolved, Western Europe was not divided 
into national states, in any proper sense of the term. As 
a result of the development of feudalism, it was divided 
into kingdoms, in which the kings at first had little power, 
and it was sub-divided, as regarded real political authority, 
into an extraordinary variety of larger and smaller units. 


The Principle of Nationality 443 


A feudal seigneur, even if his holding was hardly larger 
than that of an American farmer, was practically, in most 
cases, king of his own little domain. Through the later 
Middle Ages the sense of nationality was weak. The noble, 
the knight, the priest, the scholar, the trader, the artisan 
even, felt himself first of all a member of his class. He had 
more in common with men of other classes who spoke his 
own language. For all educated men there was still a com- 
mon European language, the Latin. In Germany there 
was no attempt to write even local laws and customs in the 
German language until the thirteenth century. 

At the close of the Middle Ages Western Europe was 
divided, as it had previously been separated from Eastern 
Europe, by religious dissension — by the Protestant revolt 
against Romanism. This was not exclusively a German 
movement; Protestantism was strongly developed in French- 
speaking countries also. 

It was not the sense of nationality that created the mod- 
ern national states: it was rather the growing power of 
kings and the formation of strong national states like the 
English, the French and the Spanish that developed the 
sense of nationality. The establishment of strong central 
governments in these states made for internal peace and 
order, but gave rise to greater and more destructive Euro- 
pean wars. For the safety of each state it was felt to be 
essential that none should gain such territorial expansion 
and power as to dominate Europe. The prime object of 
statesmanship, and the most frequent cause of war, was the 
maintenance of the balance of power. The result of these 
balance-of-power wars was summed up by Dean Swift, after 
the war of the Spanish succession, in a couplet that might 
have been written at any time in the last four years: 


Now Europe’s balanced; neither side prevails, 
For nothing’s left in either of the scales.”’ 


It was in the nineteenth century, which witnessed the 
establishment of Greek independence, the separation of Bel- 


444 The Principle of Nationality 


gium from the Netherlands and of Norway from Sweden, 
and the belated unification of Italy and of Germany, that 
the principle of nationality, the doctrine that unity of speech 
was the true basis of political union, became axiomatic. The 
problem of maintaining the balance of power — which in 
plain English means jealous fear and periodical warfare — 
has had indeed some good results. It has protected many 
of the smaller states, like Switzerland. It failed, however, 
to protect Belgium against invasion, and it kept, and still 
keeps, the Turk in Europe. 

In the nineteenth century the principle of nationality 
ran mad. It came to mean the claim of every territory, 
however small, which had its own language, or even its own 
dialect, to complete independence. With the establishment 
of four independent states in the Balkan peninsula came 
the notion that no one of these must be strong enough to 
menace the others; and forty years ago there was a balance- 
of-power war between Serbia and Bulgaria. Today the 
principle of nationality has broken up a natural economic 
area — that of the former Austro-Hungarian Empire — into 
four independent states. The first result of this extreme as- 
sertion of the principle of nationality was that each of these 
four states, prompt to demonstrate its independence, es- 
tablished a protective tariff against the others. These new 
customs barriers became, however, so injurious to each of 
these new states that, two years ago, their governments were 
forced to negotiate commercial treaties. 

A permanent cause of hostility and of warfare between 
the national states of Europe was the difficulty, amounting 
in many cases to an impossibility, of drawing national bound- 
aries along the lines of language. Around most of these 
states there were districts of mixed speech. That identity 
of speech is not the only conceivable basis of political unity 
was, however, clearly demonstrated in the case of Alsace. 
This was always, and is still, a German-speaking land; but 
for a century its people have been loyal to France. In other 
parts of Europe the problem of drawing language lines is 


The Principle of Nationality 445 


insoluble. In Bohemia, for example, German-speaking and 
Czech-speaking areas alternate like the black and white 
squares of a chess board. The Czechs resented the rule of 
the German-Austrians; the German population to-day re- 
sents the rule of the Czechs. 

The notion that government must rest primarily on iden- 
tity of speech has had hateful results. It has led repeatedly 
to the attempt to change the speech of alien elements within 
a national state. This doctrinaire effort was as unwise as 
it was tyrannical. The effort of Prussia to Germanize its 
Poles and its Danes, and the effort of the German Empire 
to Germanize Alsace-Lorraine, only intensified the hostility 
of their unwilling subjects. 

If political principles were treated like scientific theories 
as working hypotheses, to be tested, modified, and even 
abandoned in the light of results — the principle of nation- 
ality would long ago have been discredited. That it has 
been so obstinately held in Europe is the more remarkable in 
view of the fact that Switzerland has given for centuries, 
as it still gives to-day, conclusive proof that a state may 
exist and be firmly based on the loyalty of its citizens, al- 
though they are united neither by a common speech nor by 
a single religion. If Switzerland were to be dealt with ac- 
cording to the principle of nationality, the larger part of 
its territory would go to Germany, a very considerable part 
to France, a smaller part to Italy, and the inhabitants of the 
Valley of the Inn, who speak a distinct language and have 
a literature written in that language, would be organized 
as an independent and sovereign state. 

If the Austro-Hungarian government had not been based 
on the rule of the Slavic and Italian elements by German- 
Austrians and Magyars, if all its peoples, like those of Swit- 

zerland, had been given home rule under a federal system of 
| government, and if each area had its proportional represen- 
tation in the Central Government, it seems probable that 
this empire would have held together. If the Slavs in this 
empire had had any voice in the direction of foreign policy, 


446 The Principle of Nationality 


there could hardly have been an Austro-Serbian war. It 
would perhaps be pushing an hypothesis too far to say that 
the recent world war would then have been averted; but 
the immediate issue which precipitated that war could hardly 
have arisen. 3 

If it had been generally recognized in Europe that a fed- 
eral system of government enables people of varying speech, 
customs and religion to live together in harmony, it seems 
probable that most of the political troubles which have af- 
flicted Europe for centuries, and have recently imperilled its 
civilization, might have been averted. And it seems clear 
that the establishment of federal unions would solve many of 
Europe’s immediate problems. 

For China, in the light of its own history and in that of 
European history, a federal system of government seems 
essential. I say this with the less hesitation because so many 
Chinese of thought and of experience are expressing the same 
conviction. I have read with great interest the detailed 
plan of federal government which Dr. Bau recently pre- 
sented to your Association. With my limited knowledge or 
rather almost unlimited ignorance of Chinese conditions, it 
would be audacious for me to criticise the details of his plan, 
but I believe that in its main features it is sound. 


COLUMBIA UNIVERSITY PRESS 
CoLUMBIA UNIVERSITY 
New York 


FOREIGN AGENT 


HUMPHREY .MILFORD 
AMEN Hovsg, E. C. 


LONDON 


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